Com. v. Ritchey, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID JACK RITCHEY, JR. :
:
Appellant : No. 397 WDA 2022
Appeal from the Judgment of Sentence Entered December 8, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001404-2020
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: MAY 5, 2023
David Jack Ritchey, Jr. appeals from the judgment of sentence of an
aggregate eleven and one-half to twenty-seven years of incarceration,
followed by twelve months of re-entry supervision, imposed upon his
convictions for multiple possessory offenses involving firearms and drug
paraphernalia. We affirm.
The trial court provided the following factual summary of the evidence
the Commonwealth proffered at trial:
[A]t about 8:30 a.m. on August 25, 2020, Detective Sergeant Aldo
Legge of the Center Township Police Department and the Beaver
County Drug Task Force [was contacted by a confidential
informant (“the CI”)], telling him that [Appellant] would sell
firearms in a controlled purchase. Based on a discussion with
Detective [Robert] Chamberlain, Sergeant Legge went undercover
for the operation. They chose the parking lot of Harbor Freight at
the Beaver Valley Mall, Center Township, Pennsylvania, as the site
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* Retired Senior Judge assigned to the Superior Court.
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of the controlled purchase because it was away from the general
public. The CI told Sergeant Legge to bring $1,000.00 to the sale.
Sergeant Legge drove his undercover car to the parking lot alone
and waited for [Appellant].
[Appellant] drove his father’s 2017 Silver Nissan Altima to
pick up the CI and bring him to the location of the planned sale.
At approximately 3:00 p.m. on August 25, 2020, [Appellant]
arrived at the parking lot, where he backed in to park next to
Sergeant Legge’s undercover car. [Appellant] and the CI exited
the Altima and shook Sergeant Legge’s hand. [Appellant] was
wearing black gloves. [Appellant] said he had a rifle and a
revolver for sale. He walked to the back of the Altima, where he
opened the trunk to show a black plastic bag with an exposed
portion of the AR-15 rifle. Sergeant Legge pulled the plastic off of
the rifle to expose it. [Appellant] pulled a loaded .38 caliber pistol
from his waistband, which he pointed in the direction of Sergeant
Legge’s head. Sergeant Legge asked what [Appellant] was doing,
and [Appellant] said that he was showing it to him. He put it back
in his waistband. Sergeant Legge asked [Appellant] how much he
wanted, and [Appellant] said $1,000. Video (and not audio) of
this encounter was captured on a key fob camera carried by
Sergeant Legge, which Sergeant Legge put in his pocket when he
approached the trunk.
Detective Sergeant Legge gave a prearranged signal while
he removed $1,000 cash from his pocket to complete the arranged
sale. Prior to the transfer of money, marked police cars arrived,
at which time [Appellant] threw the pistol in the trunk, closed the
trunk, and said, “you’ve got to be kidding me.” [Appellant] was
arrested and charged in connection with this incident. [The police
also feigned arresting Detective Legge and the CI to camouflage
the fact that it had been a controlled buy operation.] A search of
[Appellant’s] body recovered a cloth eyeglass case containing
syringes. A warranted search of the car recovered two glass pipes
consistent with crack cocaine use, as well as other items of drug
paraphernalia. Both of the firearms recovered from the trunk of
the car were operable. At the time of his arrest, [Appellant] had
$5.00 or less in cash on his person.
Trial Court Opinion, 3/18/22, at 7-9 (cleaned up).
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Appellant was charged with two counts each of possession of a firearm
prohibited and firearms not to be carried without a license, one count each of
possession of drug paraphernalia and driving with a suspended license, and
six additional violations of the Uniform Firearms Act (“UFA”) pursuant to 18
Pa.C.S. § 6111(a)(1), (a)(2), and (c) related to the possession and sale of the
firearms.1 When Appellant was on his fourth attorney in this matter, after
having obtained repeated continuances following changes of counsel, the
Commonwealth sought to amend the criminal information, changing the six
UFA counts to attempt offenses.2 The Commonwealth also filed notice of its
intent to introduce evidence of other acts, requesting that the owner of the
firearms, Peter Williams, be permitted to authenticate them and state at trial
that they were stolen. The trial court granted both Commonwealth motions.
On July 2, 2021, trial counsel requested that the Commonwealth provide
as discovery the name of the CI, any promises or benefits given to the CI, and
unredacted copies of the Beaver County Drug Task Force concerning this case.
The Commonwealth complied with the defense discovery requests.
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1 The affidavit of probable cause attached to the criminal complaint did not
indicate that the CI was a paid informant, but rather referred to him as “the
unwitting third party.” See Affidavit of Probable Cause, 8/25/20, at 1.
2 Pretrial, the Commonwealth withdrew the count of carrying a firearm
without a license that pertained to the rifle in Appellant’s trunk, due to the
barrel length requirements of the statute. See N.T. Pretrial Conference
Hearing, 10/25/21, at 3-4.
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Between July 6 and August 10, 2021, Appellant authored multiple pro
se filings that were properly forwarded to his retained counsel in accordance
with Pa.R.Crim.P. 576. Although the issues were not properly raised in a
subsequent counseled filings, we set forth the substance of the pro se
documents as they are pertinent to issues Appellant raises in this appeal.
Appellant first claimed that he made an involuntary waiver of his right to a
preliminary hearing because the reference to an unwitting third party in the
charging documents misled him into thinking someone other than the CI, who
“was already well known to” Appellant, was also involved and, further, that
the “controlled buy” was not really controlled at all. See Letter, 7/6/21, at 2.
Appellant also asserted that he had still not seen the Commonwealth’s
discovery and that his counsel was ineffective because he did not comply with
Appellant’s request that he move to compel the CI “to be physically present
to answer any false statements given or involvement in other crimes or the
evidence used against” Appellant. Id. at 3.
Next, Appellant filed a pro se motion to compel discovery, complaining
that the information redacted from discovery documents by the
Commonwealth to protect the identify of the CI, whose status as the unwitting
third party Appellant acknowledged and whose name Appellant disclosed, was
omitted to deprive Appellant “of key exculpatory details into the lack of
investigation” into the CI’s relationship with Appellant and lack of control over
the controlled buy. See Pro Se Motion to Compel, 8/2/21, at 3-4.
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On August 10, 2021, Appellant submitted another pro se letter, again
disclosing the identity of the CI, indicating that his counsel had showed him
all the Commonwealth’s discovery materials but maintaining that the
Commonwealth was continuing to withhold exculpatory evidence such as
additional video evidence recorded by the CI and the police cruiser and DNA
evidence from the contraband. See Letter, 8/10/21, at 1-2. He also alleged
“that the cell data/cell phone dump” that he had requested of the CI’s mobile
phone had not been provided to him, and that the communications between
the CI and detectives would show that “this was a gov. manufactured crime.”
Id. at 2. Appellant further asserted that the CI violated his informant contract
with the police by committing crimes himself, that his counsel had a conflict
of interest and was not pursuing witnesses who saw the CI place the
contraband in Appellant’s car, and that the CI should be compelled to testify
at an evidentiary hearing.3 Id. at 3-5.
At a pretrial conference on October 25, 2021, the Commonwealth
indicated that it had no plan to call the CI as a witness. See N.T. Pre-trial
Conference, 10/25/21, at 39. Appellant asked for the appointment of new
counsel, indicating that he and hired counsel were not in agreement about
calling as trial witnesses the CI and Janna Gahagen, with whom Appellant had
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3 The day after Appellant’s last pro se submission was docketed and served
on counsel, the Commonwealth filed a motion to seal Appellant’s filing and for
a protective order, which the trial court granted.
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been in contact “this whole time.” Id. at 40-42. When the parties appeared
the following day, Appellant’s counsel indicated that Appellant maintained his
insistence that these witnesses be called to testify, although doing so was
contrary to the trial strategy that had “been set forth to [Appellant] for two
trial terms” at that point. See N.T. Trial, 10/26/21, at 3-4. Counsel indicated
his efforts to contact the witnesses whom he did not believe should be called,
and the Commonwealth did the same, explaining that police detectives had
tried to track down the CI, who was also the subject of bench warrants in
multiple counties but remained at large. Id. at 14-18.
Ultimately, counsel indicated that he had developed the strategy that he
believed gave Appellant the best opportunity for a successful result and was
prepared to present that defense, which did not include the witnesses
Appellant wanted to call. Id. at 17. Appellant maintained his desire “to have
the ability to be able to cross-examine [the CI] as [Appellant’s] defense.” Id.
at 18. Accordingly, Appellant requested additional time to gather more
evidence and secure the presence of the witnesses. Id. at 20. The trial court,
recounting the litany of changes of counsel and continuances, declined to
grant yet another delay with the jury panel present and ready to begin. Id.
Therefore, it gave Appellant the choice of proceeding to trial that day with
counsel of record, or proceeding pro se with standby counsel. Appellant opted
to proceed with counsel. Id. at 20-21.
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At the ensuing trial, the parties stipulated to Appellant’s status as a
person prohibited from possessing or controlling firearms under the UFA.
Detective Legge testified about receiving a call from the CI, an established,
paid informant, that led him to go undercover as a buyer of firearms from
Appellant and participate in the controlled buy described supra. The
Commonwealth further offered as exhibits video and photographs of the
prearranged buy and the recovered contraband. Mr. Williams identified the
firearms as his, stating that they had been stolen.
Appellant testified on his own behalf, admitting that the syringes were
his, but claiming that the CI had placed “collectibles” into the trunk of his car
without his awareness. While Appellant was driving the CI to the sale, the CI
informed him that there were firearms in the trunk. Appellant wore gloves
because he did not want to have anything to do with the guns and denied
requesting money from Detective Legge for the firearms. Instead, he claimed
that he never had possession of any firearm and Detective Legge had tried to
push the money at him.
The jury did not credit Appellant’s version of events and convicted him
on all counts.4 Indeed, in reaching its verdict, the jury specifically found that
at the time of the commission of the § 6105(a)(1) offense, Appellant was in
____________________________________________
4 The trial court separately found Appellant guilty of driving with a suspended
license.
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physical possession or control of a firearm, whether visible, concealed or
within his reach. See Verdict slip, 10/29/21, at 1-2.
On December 8, 2021, the trial court imposed the sentence detailed
above. Appellant filed a post-sentence motion and supplement raising eleven
issues. After holding oral argument on the motions and receiving post-hearing
briefs, the trial court issued an order and opinion denying the motions. See
Trial Court Opinion, 3/18/22. This timely appeal followed.5
Appellant, proceeding with new counsel on appeal, raises the following
issues, which we have re-ordered for ease of disposition:
I) Whether the trial court erred and abused its discretion by
finding that the jury’s verdict was based on evidence
sufficient to sustain Appellant’s conviction[s] beyond a
reasonable doubt when the [CI], a material fact witness[,]
did not testify at trial, whereas Appellant did on all aspects
of the alleged “controlled buy” including the genesis of the
same and his innocence?
II) Whether the trial court erred and abused its discretion in not
finding that Appellant’s substantive due process rights and
the right to confront the witnesses against him under the
Sixth Amendment to the Constitution were violated based
on the failure of the Commonwealth to call the [CI], a
material fact witness[,] at trial and by not, sua sponte,
continuing the trial upon the revelation of the unavailability
of the CI and another material witness (Janna Gahagan) or
later, giving an adverse inference instruction?
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5 The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal and none was filed. The trial court provided
a Rule 1925(a) opinion pointing to an unredacted version of its opinion
disposing of Appellant’s post-sentence motions as the statement of reasons
for its rulings.
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III) Whether the trial court erred and abused its discretion by
not granting the Appellant an arrest of judgment/judgment
of acquittal on the grounds of outrageous government
conduct as a result of the failure of the Commonwealth to
not have the [CI] testify at trial, to not have fully extracted
and/or disclosed the entire cell phone extraction for
discovery purposes to Appellant, and for representing the
transaction as a “controlled buy”?
IV) Whether the trial court erred and abused its discretion in not
finding that the Appellant had been entrapped under the
facts and circumstances of his case by meeting his burden
and the Commonwealth failing to rebut the same as a
matter of law?
V) Whether the trial court erred and abused its discretion by
not granting a new trial, finding that the jury’s verdict was
not against the weight of the evidence when the same was
based on prejudicial, misleading, and tainted evidence?
VI) Whether the trial court erred and abused its discretion when
it failed to arrest judgment/judgment of acquittal in favor of
Appellant, or award him a new trial, in light of the
Commonwealth’s Brady violation regarding his discovery
request for all the CI’s text messages with the undercover
police officer and the Commonwealth’s failure to provide all
of the same?
Appellant’s brief at 11-12.
Appellant first purports to challenge the sufficiency of the evidence to
sustain his convictions.6 The following principles apply to consideration of
these claims:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
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6 Appellant does not challenge his conviction for possessing drug
paraphernalia.
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a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for a fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder 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. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence received must be considered.
Finally, the trier 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. Haahs, 289 A.3d 100, 104 n.2 (Pa.Super. 2022) (cleaned
up).
Many of Appellant’s supposed sufficiency challenges have little or
nothing to do with evidentiary sufficiency. We shall start with Appellant’s
arguments that truly implicate the adequacy of the Commonwealth’s evidence
when viewed as mandated by our above standard of review, beginning with
his convictions for persons not to possess a firearm and carrying a firearm
without a license. The UFA defines the offense of person not to possess a
firearm as follows:
A person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless
of the length of sentence or whose conduct meets the criteria in
subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
See 18 Pa.C.S. § 6105(a)(1). The UFA defines the offense of carrying a
firearm without a license as follows:
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any person who carries a firearm in any vehicle or any person who
carries a firearm concealed on or about his person, except in his
place of business, without a valid and lawfully issued license under
this chapter commits a felony of the third degree.
See 18 Pa.C.S. § 6106(a)(1).
Where a defendant was not in physical possession of a firearm, the
Commonwealth may meet its burden, pursuant to both § 6105 and § 6106,
by establishing that the defendant had constructive possession of the item.
See Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa.Super. 2018)
(“Illegal possession of a firearm may be established by constructive
possession.”). Constructive possession is found where the defendant had
“conscious dominion” over the firearm. Commonwealth v. Heidler, 741
A.2d 213, 215-16 (Pa.Super 1999). To prove conscious dominion, “the
Commonwealth must present evidence to show that the defendant had both
the power to control the firearm and the intent to exercise such control.” Id.
at 216 (cleaned up). Constructive possession may be proven by
circumstantial evidence and the “requisite knowledge and intent may be
inferred from examination of the totality of the circumstances.”
Commonwealth v. Smith, 146 A.3d 257, 263 (Pa.Super. 2016) (cleaned
up).
There is no dispute regarding the recovery of illegal firearms in the
instant matter. See N.T. Trial, 10/28/21, at 16 (stipulating that Appellant was
ineligible to legally possess a firearm). Rather, Appellant asserts that the
Commonwealth failed to prove that he had actual or constructive possession
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of the firearms. See Appellant’s brief at 39-42. In support of his claim,
Appellant summarizes his own testimony that the CI placed the firearms in his
vehicle without his knowledge, and despite standing within arm’s reach of the
firearm in his trunk, he had no intent to control it. Id. Moreover, Appellant
points to the fact that the Commonwealth chose not to test the firearms for
fingerprints, as evidence that he never handled the firearms. Id. at 46.
In explaining its finding that there was sufficient evidence to establish
Appellant’s actual and constructive possession of the loaded firearms, the trial
court opined:
Detective Legge testified that [Appellant] held the pistol in his
hand and pointed it at him. The jury was free to believe this
testimony, which unambiguously demonstrates that [Appellant]
had actual possession of the pistol. This was indicated by the
jury’s factual finding at counts 1 and 2 that “[Appellant] was in
physical possession or control of a firearm, whether visible,
concealed about [Appellant], or within [Appellant’s] reach.” Even
accepting [Appellant’s] version of events, when the CI told him
that the items in the trunk were guns, [Appellant] then possessed
the guns by bringing them to the sale rather than renouncing
pursuit of the criminal offense. The Commonwealth was not
required to perform any DNA or fingerprint tests to link the guns
to [Appellant]; the jury was free to credit the testimonial and
circumstantial evidence linking [Appellant] to the guns. . . .
[Appellant] is merely rehashing his argument to the jury that they
should not believe the police narrative. However, the jury was
free to believe Detective Legge’s testimony that [Appellant]
possessed the pistol in the car and in his hand. Therefore, this
challenge fails.
Trial Court Opinion, 3/18/22, at 13.
Based on our review of the evidence, in the light most favorable to the
Commonwealth as the verdict winner, we agree with the trial court that it was
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sufficient to convict Appellant of possession of a firearm by a prohibited person
and carrying a firearm without a license. The jury was free to believe
Detective Legge’s testimony that Appellant held the pistol in his hand and
pointed it at Detective Legge, establishing actual possession of that firearm.
Moreover, as the trial court articulates, Appellant’s decision to advance to the
buy site, discuss a purchase price, open his trunk, and reveal the rifle to
Detective Legge, all was indicative of his intent to constructively possess the
rifle. Accordingly, no relief is due.
In his next sufficiency sub-challenge, Appellant contends that the
evidence was insufficient to show that he had the requisite mental state to
commit an attempted sale or transfer of the firearms pursuant to 18 Pa.C.S.
§ 6111(a)(1), (a)(2), (c). In relevant part, § 6111 of the UFA provides:
(a) Time and manner of delivery.--
(1) Except as provided in paragraph (2), no seller shall
deliver a firearm to the purchaser or transferee thereof until
48 hours shall have elapsed from the time of the application
for the purchase thereof, and, when delivered, the firearm
shall be securely wrapped and shall be unloaded.
(2) Thirty days after publication in the Pennsylvania Bulletin
that the Instantaneous Criminal History Records Check
System has been established in accordance with the Brady
Handgun Violence Prevention Act (Public Law 103-159, 18U.S.C. § 921 et seq.), no seller shall deliver a firearm to the
purchaser thereof until the provisions of this section have
been satisfied, and, when delivered, the firearm shall be
securely wrapped and shall be unloaded.
....
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(c) Duty of other persons.--Any person who is not a licensed
importer, manufacturer or dealer and who desires to sell or
transfer a firearm to another unlicensed person shall do so only
upon the place of business of a licensed importer, manufacturer,
dealer or county sheriff’s office, the latter of whom shall follow the
procedure set forth in this section as if he were the seller of the
firearm. The provisions of this section shall not apply to transfers
between spouses or to transfers between a parent and child or to
transfers between grandparent and grandchild.
18 Pa.C.S. § 6111.
Appellant contends that his § 6111 convictions cannot stand because
there was never a sale of a firearm, since it was terminated before completion.
See Appellant’s brief at 46-47. However, Appellant was convicted of an
attempt to violate § 6111, not the substantive offense. See N.T. Trial,
10/29/21, at 174-75 (announcing the verdict convicting Appellant of three
attempted violations of § 6111). As noted above, the Commonwealth
amended the criminal information pre-trial to reflect that the sale was not
completed. See Oder, 7/2/21 (granting the Commonwealth’s request to
amend the criminal information to reflect that the § 6111 violations were
attempt offenses).7 “A person commits an attempt when, with intent to
commit a specific crime, he does any act which constitutes a substantial step
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7 The Commonwealth also withdrew three of the § 6111 offenses pertaining
to the rifle, because it did not meet the barrel length requirements. See
Pretrial Conference Hearing, 10/25/21, at 4; see also 18 Pa.C.S. § 6111(f)(2)
(“The provisions contained in subsections (a) and (c) shall only apply to pistols
or revolvers with a barrel length of less than 15 inches, any shotgun with a
barrel length of less than 18 inches, and rifle with a barrel length of less than
16 inches or any firearm with an overall length of less than 26 inches).
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toward the commission of that crime.” 18 Pa.C.S. § 901(a). Thus, the
Commonwealth was not required to prove that Appellant completed the
unauthorized sale of a loaded firearm, but instead, that Appellant took a
substantial step toward the commission of that crime. Id.
Detective Legge testified that Appellant told him he had guns for sale
through the CI. See N.T. Trial, 10/27/21, at 160-61. Thereafter, Appellant
drove his vehicle to the agreed-upon location, opened the trunk of his vehicle,
and showed Detective Legge the firearms. While the CI was present,
Appellant quoted Detective Legge $1,000 for both firearms. Detective Legge
then removed the funds from his pocket and counted them in front of
Appellant. Detective Legge observed that the firearms appeared to be loaded,
which was confirmed during the later vehicle search. Further, Appellant did
not require an application or an Instant Check for the sale, was not a licensed
importer, manufacturer, dealer, or county sheriff, and the Harbor Freight
parking lot was not the place of business of an authorized seller. Hence, the
Commonwealth plainly proffered evidence that allowed the jury to conclude
beyond a reasonable doubt that Appellant took a substantial step toward
violating § 6111.
Appellant next levels a variety of attacks upon the validity of his
convictions based upon the Commonwealth’s failure to call the CI as a witness
at trial. Appellant initially shoehorns the issue into his sufficiency challenges,
with “the root of the insufficiency being the Commonwealth’s failure to call
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[the CI] in this matter at trial,” maintaining that the CI’s absence, paired with
his own testimony explaining his innocence, entitles him to an arrest of
judgment. Appellant’s brief at 29-30.
Plainly, this argument suggests that we view the evidence in the light
most favorable to Appellant, substituting our judgment for that of the fact-
finder by accepting his self-serving testimony instead of the Commonwealth’s
evidence accepted by the jury. As this flies in the face of our standard of
review of sufficiency claims, it is devoid of merit. See Haahs, supra at 104
n.2 (providing that, in reviewing a sufficiency claims, we view “all the evidence
admitted at trial in the light most favorable to the verdict winner,” and “we
may not weigh the evidence and substitute our judgment for a fact-finder”
(cleaned up)). As detailed above, the Commonwealth offered evidence from
other witnesses that established each element of each crime. Hence, the
evidence was sufficient without any testimony from the CI.
Appellant also alleges that his due process and confrontation clause
rights were violated when the Commonwealth did not call the CI as a witness
in its case-in-chief. See Appellant’s brief at 47-57. He contends that “the
Constitution does not appear to allow the Commonwealth to pick and choose
which witnesses it wishes to produce for testimony at trial, nor allow them to
abandon a material essential active participant and eyewitness such as [the
CI].” Id. at 51. Appellant further contends that the trial court erred when it
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failed to grant a continuance or give an adverse inference instruction due to
the CI’s absence. Id. at 48.
Appellant could not be more legally incorrect. First, Appellant supports
his claim that the Commonwealth had a duty to call the CI with citation to
cases that discuss no such obligation, but rather detail when and how a
criminal defendant can compel the Commonwealth to disclose the identity of
a CI. See Appellant’s brief at 56 (citing Commonwealth v. Baker, 946 A.2d
691, 696 (Pa.Super. 2008) (reversing grant of suppression motion because
the defendant failed to establish that the disclosure of the informant’s identity
would have been helpful to his case), and Commonwealth v. Davis, 465
A.2d 669, 673 (Pa.Super. 1983) (holding counsel was not ineffective for failing
to move for the disclosure of the informant’s identity)).
Appellant was aware of the identity of the CI well before trial. His
counsel made the strategic decision not to proffer the testimony of either the
CI or Ms. Gahagen, and therefore did not attempt to secure the presence of
either witness. Appellant provides no authority to support a right to relief
based upon the absence of witnesses whose presence he did not require or
desire.8 Appellant’s complaints are not directed at the Commonwealth or trial
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8 Appellant’s requests to compel the CI to testify, and to continue the case so
he could retain yet another lawyer who would secure the presence of the
absent witnesses, were made pro se while he was represented by counsel and
were thus legal nullities. See, e.g., Commonwealth v. Hopkins, 228 A.3d
577, 580 (Pa.Super. 2020) (“As hybrid representation is not permitted in the
(Footnote Continued Next Page)
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court in this direct appeal, but rather may be raised, if he so desires, as claims
of ineffective assistance of trial counsel in a Post Conviction Relief Act
petition.9 See 42 Pa.C.S. § 9543(a)(ii).
Moreover, the Confrontation Clause gives criminal defendants the right
to confront witnesses who testify against them, not the right to compel the
government to call in their case-in-chief every witness who might have
relevant information. See, e.g., Commonwealth v. Allen, 429 A.2d 1113,
1116 (Pa.Super. 1981) (“The Sixth Amendment right to confrontation extends
only to witnesses whose testimony is presented. . . . [T]he Commonwealth
____________________________________________
Commonwealth, our courts will not accept a pro se motion while an appellant
is represented by counsel; indeed, pro se motions have no legal effect and,
therefore, are legal nullities.” (cleaned up)). Even if Appellant had attempted
to secure the CI to testify, no relief would be due based upon the certified
record before us. An adverse inference instruction is not warranted if the
witness is not within the control of the party against whom the inference is
sought or is equally available to both parties. See, e.g., Commonwealth v.
Crumbley, 270 A.3d 1171, 1185 (Pa.Super. 2022). As the Commonwealth
aptly observed, the disappearance of the CI is likely attributed to Appellant’s
choice to make a matter of public record not only the CI’s identity, but also
“his cooperation agreement, his record receipts, [and] his criminal records[.]”
N.T. Trial, 10/28/21, at 75. In any event, the trial court determined that the
CI was unavailable as a witness to any party, as neither the prosecution nor
Appellant’s counsel, or even the authorities in two other counties where the
CI was subject to a bench warrant, had been able to locate him. See N.T.
Trial, 10/26/21, at 19.
9 Likewise, any claims about the court’s failure to grant an adverse jury
instruction were not preserved for our review and can be addressed only in
the context of a collateral allegation of counsel’s ineffectiveness for failing to
preserve the issue. See Pa.R.Crim.P. 647(C) (“No portions of the charge nor
omissions from the charge may be assigned as error, unless specific objections
are made thereto before the jury retires to deliberate.”).
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is not obligated to call the victim of a crime as a witness.”). The only
statements from the CI that were admitted at trial were bits of conversation
between the CI and a police officer contained in the undercover recording of
the incident in question, which, as Appellant acknowledges in his brief, were
introduced by Appellant, not the Commonwealth. See Appellant’s brief at
58. Appellant could not himself manufacture a Confrontation Clause issue by
introducing what he now complains was inadmissible hearsay that the
Commonwealth and trial court failed to object to on his behalf. See id. at 59.
Again, if Appellant is unhappy with trial counsel’s strategy, he may challenge
it on collateral review.
Accordingly, we conclude none of Appellant’s arguments related to the
absence of witnesses that neither party called merits relief.
Appellant next claims that the trial court erred by not ruling that, as a
matter of law, the evidence at trial established the defense of entrapment.
Appellant explains that he testified that he was “tricked and induced by the CI
in providing a ride to [sell] collectibles, premised on getting his money paid
back to him.” Appellant’s brief at 67. Thereafter, the CI placed loaded
firearms in his car under false pretenses and only informed him of the
existence of the firearms once they were close to the location of the sale. Id.
Since the CI did not testify, Appellant contends that his testimony alone was
uncontradicted, and therefore, established the defense of entrapment as a
matter of law. Accordingly, the court erred when it instructed the jury on
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entrapment, rather than removing the matter from the jury’s purview and
concluding that Appellant established entrapment as a matter of law.10 Id. at
68.
The Crimes Code defines the defense of entrapment in relevant part as
follows:
(a) General rule.--A public law enforcement official or a person
acting in cooperation with such an official perpetrates an
entrapment if for the purpose of obtaining evidence of the
commission of an offense, he induces or encourages another
person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to
induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which
create a substantial risk that such an offense will be
committed by persons other than those who are ready to
commit it.
(b) Burden of proof.--Except as provided in subsection (c) of
this section, a person prosecuted for an offense shall be acquitted
if he proves by a preponderance of evidence that his conduct
occurred in response to an entrapment.
18 Pa.C.S. § 313.
“The burden is on the defendant to establish entrapment and the inquiry
focuses on the conduct of the police, not the predisposition of the defendant.”
Commonwealth v. Joseph, 848 A.2d 934, 939 (Pa.Super. 2004).
The test with regard to police conduct is an objective one. Merely
affording the opportunity, through police artifice and stratagem,
for the commission of a crime by a person who already has the
____________________________________________
10“Our standard of review regarding questions of law is de novo.”
Commonwealth v. Luczki, 212 A.3d 530, 543 (Pa. Super. 2019).
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requisite intent is not entrapment. Rather, the defense of
entrapment is aimed at condemning certain impermissible
conduct which . . . falls below standards . . . for the proper use of
governmental power.
Id. (cleaned up). “Where police do no more than afford appellant an
opportunity to commit an illegal act, their actions are not considered
sufficiently outrageous police conduct to support an entrapment defense.”
Commonwealth v. Marion, 981 A.2d 230, 239 (Pa.Super. 2009) (cleaned
up).
Where there is no dispute as to the “operative facts,” the trial court may
decide to reject or grant an entrapment defense as a matter of law. Id.“Operative facts are those that are necessary for appellant to prove by a
preponderance of the evidence that he was entrapped. Under the objective
test for entrapment, these would be facts that go to the course of conduct of
a government officer or agent that would fall below standards to which
common feelings respond, for the proper use of government power.” Id.(cleaned up).
Herein, the conduct of Detective Legge did not rise to the requisite level
of outrageousness that would justify a finding of entrapment as a matter of
law. Detective Legge testified that he received a phone call from the CI
informing him that Appellant was looking to sell two firearms for $1,000. In
contrast, Appellant contended that the CI intended to sell firearms without his
knowledge. Accordingly, operative facts were in dispute, and whether the
police entrapped Appellant was a factual issue properly left to the jury to
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resolve. The jury was entitled to believe Detective Legge’s version of events,
namely that he did not initiate the illicit sale, but merely posed as an interested
buyer once he was informed of Appellant’s desire to profit from the stolen
firearms. Disbelieving Appellant’s factual recitation, the jury could properly
find that Detective Legge afforded Appellant the opportunity to follow through
with a crime that he had himself formed the intent to commit. Thus,
entrapment was not necessarily established.
Furthermore, even Appellant’s self-serving version of events failed to
establish his entrapment defense. According to Appellant, he was aware that
he was driving to sell firearms before he arrived on site. However, rather than
abandon the sale, Appellant put gloves on and proceeded to Harbor Freight.
Appellant than walked to the back of his vehicle, opened the trunk, and
revealed the firearms that were for sale to Detective Legge. Thus, the record
does not reveal that law enforcement perpetrated an entrapment, but rather
provided Appellant with an opportunity to commit a crime. Accordingly, the
trial court properly left the entrapment issue to the jury.
Appellant’s next claim fails for identical reasons. Appellant asserts that
the Commonwealth violated his due process rights because there was no
evidence adduced at trial proving that Appellant placed the firearms in the
vehicle. See Appellant’s brief at 70. Specifically, Appellant contends the
Commonwealth engaged in “outrageous conduct” by spinning a web to
ensnare Appellant using “stolen firearms, fabrications (need for a ride and to
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sell collectibles), an uncontrolled buy, and with staged video evidence as a
finale.” Id. at 71-72.
“Due process, in the most general sense, protects individuals from
oppressive or arbitrary governmental conduct.” Commonwealth v. Bomar,
104 A.3d 1179, 1209 (Pa. 2014) (citing Commonwealth v. Kratsas, 764
A.2d 20, 27 (Pa. 2001)). To establish a due process violation based on
“outrageous government misconduct,” an appellant must prove that such
conduct was “so grossly shocking and so outrageous as to violate the universal
sense of justice.” Id. (quoting Commonwealth v. Mance, 619 A.2d 1378,
1381 (Pa.Super. 1993)). In Commonwealth v. Benchino, 582 A.2d 1067(Pa.Super. 1990), this Court explained further what types of outrageous
government misconduct arise to a level implicating due process concerns:
Before the conduct of law enforcement officials or government
agents will be found to have violated due process, . . . it must be
shown that police conduct was so grossly shocking and so
outrageous as to violate the universal sense of justice. The
establishment of a due process violation generally requires proof
of government overinvolvement in the charged crime and proof of
the defendant’s mere passive connection to the government
orchestrated and implemented criminal activity. Moreover, for
due process to bar a conviction, the government’s involvement in
the commission of the crime must be malum in se or amount to
the engineering and direction of the criminal enterprise from
beginning to end.
Id. at 1069 (cleaned up).
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Assuming arguendo that Appellant preserved this claim and that the
conduct he alleges qualifies as outrageous,11 the only evidence that suggests
that the government engaged in any conduct different from what typically
happens when trusted informants offer tips is Appellant’s testimony about
entrapment that was rejected by the jury. Cf. Commonwealth v. Sun Cha
Chon, 983 A.2d 784, 789 (Pa.Super. 2009) (affirming the dismissal of charges
that flowed from police funding and sending a CI into a massage parlor “on
four occasions for a smorgasbord of sexual activity”). Thus, we conclude that
no relief is due on Appellant’s claim of outrageous government conduct.
In his penultimate issue, Appellant contends that the verdicts were
against the weight of the evidence. The following law applies to our
consideration of that claim:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. 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.
____________________________________________
11 The Commonwealth argues that the claim had to be preserved by raising
it in a pretrial motion to dismiss. See Commonwealth’s brief at 28-29 (citing,
inter alia, Commonwealth v. Butler, 601 A.2d 268 (Pa. 1991)).
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Commonwealth v. Arias, 286 A.3d 341, 352 (Pa.Super. 2022) (cleaned up).
Accordingly, our task is to determine whether the trial court, in ruling on
Appellant’s weight challenge, “abused its discretion by reaching a manifestly
unreasonable judgment, misapplying the law, or basing its decision on
partiality, prejudice, bias, or ill-will.” Commonwealth v. Clay, 64 A.3d 1049,
1056 (Pa. 2013) (cleaned up).
Appellant argues that the verdict here was conscience-shocking based
upon the CI-related issues already discussed, and that, in failing to overturn
the verdict, the trial court committed an “abdication of its role as administrator
of the evidence and overseer of a fair trial” and, thus, an abuse of discretion.
Appellant’s brief at 77. The trial court, having rejected Appellant’s “prior
arguments, that he was entrapped, framed, and prejudiced by everyone but
himself” for the reasons discussed above, found its conscience unshocked by
the jury’s verdict. See Trial Court Opinion, 3/18/22, at 25. Since we observe
no evidence that the trial court’s conclusion was manifestly unreasonable,
based upon an error of law, or otherwise informed by improper motives, we
have no cause to disturb its ruling.
In his final claim, Appellant avers that trial court erred in rejecting his
claim that the Commonwealth committed a violation of Brady v. Maryland,
397 U.S. 742 (1969). “This issue presents a question of law, for which our
standard of review is de novo and our scope of review is plenary.”
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Commonwealth v. Bagnall, 235 A.3d 1075, 1084 (Pa. 2020). Our Supreme
Court summarized the law governing Brady claims as follows:
In Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. The Supreme Court
subsequently held that the duty to disclose such evidence is
applicable even if there has been no request by the accused, and
that the duty may encompass impeachment evidence as well as
directly exculpatory evidence. Furthermore, the prosecution’s
Brady obligation extends to exculpatory evidence in the files of
police agencies of the same government bringing the prosecution.
On the question of materiality, the Court has noted that such
evidence is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. The materiality inquiry is
not just a matter of determining whether, after discounting the
inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury’s conclusions.
Rather, the question is whether the favorable evidence could
reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict. Thus, there are three
necessary components that demonstrate a violation of the Brady
strictures: the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence
was suppressed by the prosecution, either willfully or
inadvertently; and prejudice ensued.
Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005) (cleaned up).
Appellant contends that the Commonwealth refused to produce all text
messages between the CI and Detective Legge, and that the text messages
were exculpatory because they would support his entrapment defense at trial.
See Appellant’s brief at 73. The trial court offered the following explanation
for rejecting Appellant’s claim:
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[Appellant] has not demonstrated that the Commonwealth in fact
had any text messages that were not provided. At trial,
Commonwealth’s proposed Exhibit 11 was text message records
from the CI’s phone, which [Appellant] received in discovery. He
has not shown from the record that any other text messages exist
or that other text messages would be exculpatory.
Trial Court Opinion, 3/18/22, at 20-21 (cleaned up).
We discern no error by the trial court. Detective Legge testified that he
had communicated with the CI both through calls and text messages, and that
his initial contact with the CI was through a phone call. See N.T. Trial,
10/27/21, at 149, 156. Hence, the testimony is not inconsistent with the
quantity of text messages that the Commonwealth provided. Appellant has
failed to point to any evidence of record that text messages beyond those
produced to him in discovery even exist, let alone contained exculpatory
information. Accordingly, the trial court properly denied Appellant’s claim
based upon purely speculative allegations of the existence of Brady material.
For the aforementioned reasons, we conclude that none of the issues
Appellant has presented to this Court merits relief. Therefore, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2023
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