Com. v. Bates, M.

J-S77014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARC S. BATES A/K/A MARC S. BATTES
Appellant No. 291 MDA 2016
Appeal from the Judgment of Sentence August 26, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001906-2014
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 13, 2017
Appellant, Marc S. Bates, appeals from the judgment of sentence
entered after a jury found him guilty of delivery of a controlled substance,
cocaine. Bates raises five challenges to the conviction, including the
sufficiency of the evidence, weight of the evidence, and evidentiary rulings
by the trial court. After careful review, we conclude that two of the trial
court’s evidentiary rulings were based upon incorrect premises. In both
instances, the trial court’s ruling precluded further development of the
record to allow consideration of whether the evidence was ultimately
admissible. As a result, we affirm in part, and vacate and remand for a
hearing on the issues identified in this memorandum.
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*
Retired Senior Judge assigned to the Superior Court.
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On October 14, 2014, the Commonwealth charged Bates with delivery
of cocaine and criminal use of a communications facility. At trial, the
Commonwealth presented evidence that Sergeant Brett Hopkins of the
Lebanon County Drug Task Force utilized a confidential informant (“CI”) to
introduce him to a cocaine dealer known only as “Mighty Mike.” N.T., Trial,
6/10/15, at 4-8. The CI contacted Mighty Mike and arranged for a cocaine
transaction. See id., at 9.
Shortly before 10 p.m., a white car, later determined to be Bates’s,
pulled up on the street in front of Sergeant Hopkins and the CI. See id., at
9; 33-34. Sergeant Hopkins testified that he saw, but could not identify, a
Hispanic female driving the vehicle. See id., at 26. A black male exited the
vehicle and approached the CI. See id., at 9. Sergeant Hopkins handed the
CI $100 of “prerecorded drug task force funds,” and the CI immediately
handed the money to the black male. Id. In exchange, the man handed the
CI a white envelope containing crack cocaine and then quickly departed. See
id., at 10.
The transaction lasted no more than a minute. See id., at 26. During
that time, Sergeant Hopkins stood within inches of the black male. See id.,
at 17. He stated that he got a clear look at the man’s face. See id., at 28.
Sergeant Hopkins positively identified Bates as the man who handed the
envelope to the CI. See id., at 8.
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Bates pursued a mistaken identity defense at trial. In furtherance of
this strategy, he sought pre-trial disclosure of the identity of the CI. The trial
court denied this request. Furthermore, Bates sought to present the
testimony of his girlfriend, Ali Marinkov. Bates proffered that Marinkov would
testify that during the time in question, she would take Bates’s car with
people other than Bates to engage in narcotics transactions. The trial court
barred Marinkov’s testimony on the grounds that she was an undisclosed
alibi witness. Finally, Bates sought to introduce a picture of himself and his
brother in an attempt to bolster his argument that Sergeant Hopkins had
mistakenly identified him. The trial court denied admission of the photograph
on the ground that Bates could not present the testimony of the person who
had taken the photograph.
The trial court entered a directed verdict on the criminal use of a
communications facilty charge, and the jury convicted Bates on the delivery
of cocaine charge. Bates filed a post-sentence motion, which the trial court
denied. This timely appeal followed.
In his first argument on appeal, Bates argues that the evidence at trial
was insufficient to establish his identity as the perpetrator. Our standard of
review for a challenge to the sufficiency of the evidence is to determine
whether, when viewed in a light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for
the trier of fact to find that each element of the crimes charged is
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established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa. Super. 2007) (citation omitted).
The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. See id. Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See id. As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,
584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless the
evidence is so weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.” Bruce, 916 A.2d
at 661 (citation omitted).
As noted above, Sergeant Hopkins testified that he was within inches
of the perpetrator as the transaction occurred. He positively identified Bates
as the perpetrator. Furthermore, it is undisputed on appeal that the vehicle
used by the perpetrator was Bates’s, and driven by Bates’s girlfriend,
Marinkov. The jury was entitled to credit these facts and draw the
reasonable inference that Bates was the perpetrator. Bates is due no relief
on his first issue on appeal.
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Next, Bates argues that the verdict was against the weight of the
evidence.
The weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal
citations omitted).
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
quotes and citations omitted).
The trial court found that the verdict did not shock its conscience due
to Sergeant Hopkins’s positive identification. We cannot conclude that this is
an abuse of discretion, and therefore Bates’s second issue on appeal merits
no relief.1
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1
We base this analysis on the record as it currently exists. Obviously, the
trial court’s evidentiary rulings shaped this record in ways that may
(Footnote Continued Next Page)
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In his third issue, Bates contends that the trial court erred in denying
pre-trial disclosure of the identity of the CI. “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).
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.
Id., at 607-608 (internal citations omitted).
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
communications, 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.
No 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
_______________________
(Footnote Continued)
ultimately be determined to be erroneous. We cannot reach that issue at this
time.
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charged, the possible defense, the possible significance of the
informer’s testimony, and other relevant factors.
Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (Opinion
Announcing the Judgment of the Court) (citation omitted).
The initial burden requires the defendant to “demonstrate a reasonable
possibility the informant could give evidence that would exonerate him.”
Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (citation
omitted). A defendant does not meet this burden by “mere assertion” that
disclosure of the CI’s identity would be helpful to the defense. Id.The Supreme Court of Pennsylvania has held that where a single police
officer is the only eyewitness to a crime other than the CI, the arrest was
not made shortly after the crime, and the defendant has presented evidence
supporting a mistaken identity defense, justice requires the disclosure of the
CI’s identity. See Commonwealth v. Payne, 656 A.2d 77, 80 (Pa. 1994).
Disclosure could still be withheld, however, if the Commonwealth presents
evidence that the CI’s safety would be threatened thereby. See Marsh, 997
A.2d at 324.2
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2
The opinion announcing the judgment of the court in Marsh garnered the
support of three Justices. A concurring opinion, which criticized the lead
opinion’s analysis of evidence concerning safety of a CI, garnered the
support of the three remaining Justices. Justice Greenspan did not
participate in the decision. All six Justices agreed that safety of the CI was
an appropriate concern; the concurrence held that the identity of the CI
should not be withheld without evidence of a “reasonably specific type of
danger.” 997 A.2d at 326 (citation omitted). We therefore conclude that
(Footnote Continued Next Page)
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Here, there was no hearing on Bates’s oral, pre-trial motion.3
However, given that Bates testified at trial, it is clear that he was prepared
to testify during a hearing on this motion. At trial, Bates testified that he did
not commit the crime. See N.T., Trial, 6/10/15, at 54-55. The only positive
identification evidence that Bates was the perpetrator came from Sergeant
Hopkins, who admitted that the transaction with the CI was the first time he
had met Bates. See id., at 14. He did not arrest Bates at the time, but
waited approximately one and one-half months to file charges. See id., at
25.
Under these circumstances, we conclude that Payne controls the
resolution of the first element of the balancing test. Bates established that
the identity of the CI was material to his mistaken identity defense.
Furthermore, he established that, absent evidence of a “reasonably specific
type of danger” to the CI, disclosure of the identity was warranted. See
Commonwealth v. Bing, 713 A.2d 56, 60 (Pa. 1998).
However, since the Commonwealth was also denied the chance to
present evidence on this issue, we cannot rule as a matter of law on this
record. At trial, the Commonwealth did present testimony of general
_______________________
(Footnote Continued)
Marsh did not alter the rule requiring evidence of a “reasonably specific type
of danger” to the CI set forth in Bing, infra.
3
Neither the Commonwealth nor the trial court dispute Bates’s contention
that he made such a motion in open court while the jury was being selected.
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concerns about revealing the identity of a CI. See N.T., Trial, 6/10/15, at 8.
This evidence would not establish a reasonably specific type of danger to the
CI in this case. Since the issue of the CI’s safety was no longer directly
relevant to the trial, it is possible that the Commonwealth could have
adduced further evidence on this issue in a hearing on Bates’s motion. We
would therefore remand for such a hearing in the trial court to determine if a
new trial is necessary. Accorindingly, we vacate the trial court’s ruling in this
regard and remand for a hearing.
Unfortunately, this is not the only error committed by the trial court in
this matter. The trial court also impacted Bates’s mistaken identity defense
by denying him the opportunity to present the testimony of Bates’s
girlfriend, Ali Marinkov. Bates proffered that Marinkov would testify that,
during the time in question, she was using drugs and that she would drive
Bates’s car for other individuals, not Bates, to sell narcotics. See id., at 43-
44. The trial court denied the request, holding that Marinkov was an alibi
witness of whom Bates had not provided sufficient notice to the
Commonwealth. See id.The trial court and the Commonwealth continue to argue that Marinkov
was an alibi witness, as her testimony would place Bates somewhere other
than the scene of the crime. However, Marinkov’s testimony did not place
Bates at any particular place, and therefore did not constitute an alibi. See
Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004). Thus, the trial
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court erred in denying the request on this ground. In doing so, the court
prevented further development of the proffer to allow for a thorough
examination of the relevance of Marinkov’s testimony. We therefore cannot
reach the issue, despite the Commonwealth’s arguments. Thus, we vacate
this ruling and remand for both sides to be given an opportunity to provide
proffers or evidence addressing the issue of relevance.
Finally, the trial court denied Bates’s request to enter a photograph of
himself and his brother on the ground that Bates could not authenticate the
photograph without the testimony of the person who took the photograph.
Photographs “may be authenticated by testimony from a person who has
sufficient knowledge that the photograph fairly and accurately reflects what
the proponent is purporting that photograph to reflect.” Commonwealth v.
Loughnane, 128 A.3d 806, 814 (Pa. Super. 2015). Bates proffered to
identify himself and his brother in the photograph. See N.T., Trial, 6/10/15,
at 51. This proffer would have been sufficient to authenticate the photo.
Once again, the Commonwealth argues that, in any event, the
photograph was irrelevant. In this instance, we agree. Bates denied that he
was accusing his brother of being the perpetrator. See id., at 56-57. “I don’t
know who it was. I know it was my car used, I know that, but it wasn’t me.”
Id., at 57. Pursuant to that the testimony, the photograph was not relevant
to any issue at trial. Bates is therefore due no relief on this issue.
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Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judge Platt joins the memorandum.
Judge Olson files a concurring/dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
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