Com. v. Ballard, D.

• Court: Superior Court of Pennsylvania
• Decided: September 11, 2014
• Docket: 3519 EDA 2012
• Status: Unpublished

Opinion

J-A12011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DARNELL BALLARD, : : Appellant : No. 3519 EDA 2012

Appeal from the Judgment of Sentence Entered July 3, 2012, In the Court of Common Pleas of Bucks County, Criminal Division, at No. CP-09-CR-00001344-2012.

BEFORE: SHOGAN, STABILE and PLATT*, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 11, 2014

Appellant, Darnell Ballard, appeals from the judgment of sentence

entered in the Court of Common Pleas of Bucks County on July 3, 2012,

following a jury trial. We affirm.

The trial court summarized the factual history of this case as follows:

In December of 2010, the Thirty-Second Statewide Investigating Grand Jury began hearing evidence concerning a large scale heroin distribution ring operating in six counties within the Commonwealth Philadelphia, Chester, Delaware, Montgomery, Perry and Bucks. The Grand Jury issued three Presentments: Presentment No. 2, issued March 23, 2011, Presentment No. 8, issued June 21, 2011 and Presentment No. 18, issued October 13, 2011. Those Presentments collectively recommended the Attorney General arrest and prosecute 31 individuals, including [Appellant], identified as belonging to the f the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a), the Corrupt Organizations statute and other offenses under the Crimes Code as a result of the widespread

__________________ *Retired Senior Judge assigned to the Superior Court. J-A12011-14

Pennsylvania. Appellant, his uncle Victor Ballard, and his

members of the organization located in Philadelphia which they, along with another family member, Brian Ballard, then sold in Bucks County.

Three electronically intercepted telephone calls established

distribution organization. The calls occurred between [Appellant] and Fausto Gabriel Valdez-Cordero, identified as the number two member in the

heroin from Fausto Gabriel Valdez-Cordero.

cellular telephone5 to call Fausto Gabriel Valdez-Cordero to coordinate a pre-arranged meeting between Victor Ballard and

the purchase of forty bundles6 of heroin by Victor Ballard[, as follows:] 5 That same cell phone was used numerous time -Cordero. 6 Agent Timothy Riley testified that one

heroin.

FAUSTO GABRIEL VALDEZ-CORDERO: What time he be there?

[APPELLANT]: Pop,7 he said

Ballard, Anthony Gary, and other drug dealers when referring to or speaking with Fausto Valdez-Cordero.

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FAUSTO GABRIEL VALDEZ- minutes beca

him to meet you first, OK, so let me know.

[APPELLANT]: He said ten minutes, he already

FAUSTO GABRIEL VALDEZ-CORDERO: Huh?

[AP

FAUSTO GABRIEL VALDEZ-CORDERO: Ok.

Thirty minutes later, [Appellant] again called Fausto Gabriel Valdez-Cordero. The following exchange occurred at that time:

FAUSTO GABRIEL VALDEZ-CORDERO: Yo man, what up?

[APPELLANT]: He there, Poppy.

FAUSTO GABRIEL VALDEZ-CORDERO: You there?

[APPELLANT]: Yeah, he there now.

FAUSTO GABRIEL VALDEZ-CORDERO: Ok, let me call him, call my guy . . . .

t this phone.

FAUSTO GABRIEL VALDEZ-CORDERO: Oh, alright.

[APPELLANT]: He got the other phone he called you on.

FAUSTO GABRIEL VALDEZ-CORDERO: Alright.

The next day, February 5, 2011, Fausto Gabriel Valdez- . [Appellant] answered:

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[APPELLANT]: Hello.

FAUSTO GABRIEL VALDEZ-CORDERO: Yo Pop.

FAUSTO GABRIEL VALDEZ-CORDERO: What?

get back from the store yet, you gotta call his other phone.

FAUSTO GABRIEL VALDEZ-CORDERO: You gotta call . . . .

[APPELLANT]: Ohhh, hold on . . .

FAUSTO GABRIEL VALDEZ-CORDERO: Ohhh, he callin me right now.

[APPELLANT]: Alright.

In order to prove that the voice on the intercepted calls was that of [Appellant], the Commonwealth introduced the voice

telephone calls while incarcerated at Bucks County Correctional Facility were also introduced. Finally, Agent Timothy Riley testified that he recognized the voice on the three intercepted telephone calls to be that of [Appellant].

Trial Court Opinion, 3/28/13, at 1 4 (internal citations and one footnote

omitted).

On June 7, 2012, the jury found Appellant guilty of conspiracy to

deliver heroin and three counts of criminal use of a communication facility.

The court sentenced him on July 3, 2012, to a term of incarceration of five

to fifteen years. Appellant filed timely post-sentence motions; following

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hearings on September 19, 2012, and October 5, 2012,1 the trial court

denied the motions on December 7, 2012. Appellant filed a notice of appeal

on December 21, 2012. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

A. Did the Commonwealth violate its due process obligations under Brady v. Maryland and its progeny and Pa.R.Crim.P. 573 by failing to disclose that state investigators were not following basic investigative protocols by failing to document a majority of investigative interviews and contacts with co-defendants including Fausto Gabriel Valdez-Cordero, Fausto Ezequiel Valdez- - trial notice of intent of raising a defense attacking the reliability,

B. Did the Commonwealth violate its due process obligations under Brady v. Maryland and its progeny and Pa.R.Crim.P. 573 by failing to disclose the existence of the March 6, 2012, undocumented exculpatory investigative interview of co- defendant Fausto Gabriel Valdez-Cordero conducted by state

where co-defendant Fausto Gabriel Valdez-Cordero failed to identify the Appellant after exposure to incriminating intercepted phone calls of the Appellant and after failing to otherwise incriminate the Appellant?

Appellant asserts that the Commonwealth violated Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny and Pa.R.Crim.P. 573 by

1 We note that the transcript from the October 5, 2012 hearing is erroneously labeled Friday, October 6, 2012. All citations to the transcript will be noted herein as 10/[5]/12.

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Commonwealth failed to document a majority of investigative interviews and

contacts with Fausto Ezequiel Valdez-Cordero, Fausto Gabriel Valdez-

intent to raise a defense attacking the reliability, thoroughness, and good

faith of the investigation. Appellant maintains that he would have presented

an alternate defense if the Brady evidence had been disclosed to him prior

to trial by attacking the competence, credibility, good faith, and bias of the

main witness against Appellant. Appellant avers that he

would have assailed the original physical identification of Appellant, as well,

if the Brady

A Brady to produce

material evidence. Under Brady:

information material to the guilt or punishment of an accused,

Commonwealth v. Spotz, 18 A.3d 244, 275 76 (Pa. 2011) (citation omitted). To establish a Brady violation, appellant must demonstrate: the evidence at issue was favorable to him, because it was either exculpatory or could have been used for impeachment; the prosecution either willfully or inadvertently suppressed the evidence; and prejudice ensued. Id. at 276

.. reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been Id. (citations omitted).

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Commonwealth v. Walker

le to an accused upon request violates due

process where the evidence is material either to guilt or punishment,

Commonwealth v.

Small, 741 A.2d 666, 676 (Pa. 1999).

The burden of proof is on the defendant to demonstrate that the Commonwealth withheld or suppressed evidence. The

required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (footnote omitted). Similarly, this Court has limited the not provide a general right of discovery to defendants. Moreover, we have held that the prosecution is not obligated to reveal evidence relating to fruitless leads followed by investigators.

mu . . ., materiality extends to evidence affecting the credibility of witnesses, rather than merely to purely exculpatory evidence. Moreover, we have held that the protection of Brady extends to the d and to formulate trial strategy. See Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242, 1245 (1994) (holding that courts

disclose might have had on not only the presentation of the

Commonwealth v. Cam Ly, 980 A.2d 61, 75 76 (Pa. 2009) (some internal

citations omitted).

In making his argument, Appellant also relies upon Pa.R.Crim.P.

573(B)(1)(a), which provides, in relevant part, as follows:

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Rule 573. Pretrial Discovery and Inspection

* * *

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the

attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when

inspect and copy or photograph such items.

(a) Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth;

Clearly, the key requirement of Pa.R.Crim.P. 573, whether under Rule

573(B)(1) mandatory or (b)(2) discretionary disclosure, is that the items

requested be material. See Commonwealth v. Johnson, 815 A.2d 563,

573 (Pa. 2002) (stating evidence wit

material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the results of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

Commonwealth v. Jones, 637 A.2d 1001,

1004 (Pa. Super. 1997). As our Supreme Court has stated:

[T]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but

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whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable

suppression of evidence undermines confidence in the outcome of the trial. The United States Supreme Court has made clear that materiality standard is not a sufficiency of the evidence test. A Brady violation is established by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Importantly, the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.

Commonwealth v. Hutchinson, 25 A.3d 277, 310 (Pa. 2011) (internal

citations and quotation marks omitted).

The Commonwealth explains that the present case was a year-long

investigation involving numerous witness contacts as well as thirty co-

defendants. The investigation generated twelve DVDs and CDs containing

thousands of pages of documents including: interviews of approximately

nineteen co-defendants; laboratory results; Bristol Township Police reports;

Pennsylvania State Police reports; search warrants and affidavits;

surveillance reports; handwritten surveillance notes; wiretap orders,

applications, attachments, and final orders; cellular telephone tower

locations; criminal histories of Appellant and his co-defendants; Pen/Ping2

the cell signal between the phone and the closest cell tower and finding the last known address where the cell phone transmitted a signal requesting servi Commonwealth v. Rushing, 71 A.3d 939, 946 (Pa. Super.

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orders, applications and affidavits; prison recordings; voice exemplars;

videos; tens of thousands of hours of audio intercepts; monitor logs;

transcripts; grand jury presentments and transcripts; impeachment evidence

regarding defense witnesses called at trial; and, a list of potential

Commonwealth witnesses. N.T., 10/[5]/12, at 102 106, 127 135.

As the Commonwealth points out, Appellant could have discovered the

Commonwealth Brief at 23. As we stated in Commonwealth v. Rhodes,

Brady violation when the

appellant knew or, with reasonable diligence, could have uncovered the

evidence in question, or when the evidence was available to the defense

from non-governmental sources. Id. at 914 (quoting Commonwealth v.

Chamberlain, 30 A.3d 381, 409 (Pa. 2011) (quotations, quotation marks,

and citations omitted)).

For example, defense counsel stipulated that he received: (1) a BNI

supplement for an interview conducted with Erika Rosa on February 15,

2011; (2) a report of an interview with Fausto Gabriel Valdez-Cordero

conducted on July 21, 2011; (3) a report of an interview with Fausto

Ezequiel Valdez-Cordero conducted on January 25, 2012; and (4) a report of

an interview with Jose Sanchez dated August 10, 2011. N. T., 10/[5]/12, at

2013), petition for allowance of appeal granted in part on other grounds, 84 A.3d 699 (Pa. 2014).

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10 11. In post-sentence motions, Appellant asserted that subsequent

interviews of these four individuals were conducted, that he was not

provided with that information during discovery, and therefore, the

Commonwealth violated its obligation under Brady. The trial court,

the agents had with the aforementioned codefendants resulted in the

Opinion, 3/28/13, at 10. Moreover, our review of the record reveals that the

investigative agents, including Agent Riley, were subpoenaed for trial as

early as March 2012. N.T., 10/[5]/12, at 119; N.T., 3/12/12, at 43. Agent

Riley testified that he would have spoken to defense counsel prior to trial

/12, at 119 120.

Defense counsel, however, did not attempt to speak to Agent Riley or any

other agent. Id. at 120.

The trial court addressed the issue as follows:

As to Erika Rosa, Agent Riley testified that he conducted approximately three interviews with Rosa after her arrest. She was not asked to listen to the intercepted telephone

interviewed about [Appellant]. Rosa never provided the investigators with any evidence which would have exculpated [Appellant].

As to Fausto Ezequiel Valdez-Cordero, the evidence established that agents only met with him for a few minutes in

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March of 2012. Fausto Ezequiel Valdez-Cordero refused to answer questions posed by law enforcement. No report was written.

As to Jose Sanchez, although the evidence clearly established that he was a member of the Corrupt Organization, the evidence also established that he did not have any dealings with the Bristol Township members of the organization which included [Appellant]. Nonetheless, his initial interview with agents was provided to the defense in discovery. In 2012, agents met with Jose Sanchez for a second time. During that interview, Sanchez reaffirmed the information he had already provided during his initial interview which had been reduced to writing and provided to defense counsel in discovery.

As to Fausto Gabriel Valdez-Cordero, as already stated,

he did not provide information which was relevant to

[Appellant] argues that the Commonwealth violated its

investigative interviews/contacts with Co-Defendants, despite pre-trial notice of intent of raising a defense attacking the reliability, thoroughness and good faith of the state

memorialize in a written report each time one of its agents spoke to or had contact with each of the 30 co-defendants and/or potential witnesses throughout the course of this on-going investigation. However, none of those undocumented follow-up contacts with co-defendants involved [Appellant]. Many of the follow-up interviews of the various co-defendants not only did not involve [Appellant] but many times did not involve the -defendants were being interviewed regarding other investigations. Since there is no evidence that the government suppressed, intentionally or unintentionally, any evidence favorable to the accused, there can be no discovery violation.

Trial Court Opinion, 3/28/13, at 11 12 (internal citations omitted). Our

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Although the investigation was very well documented, the

investigators were not required to take detailed notes of all investigative

activity, nor record every word said by each co-defendant wholly unrelated

to Appellant during the investigation. See, e.g., Small, 741 A.2d at 676

complete and detailed accounting to the defense of all police investigatory

see also Commonwealth v. Appel, 689

A.2d 891, 907 Brady to

Assuming, arguendo, that Appellant could establish investigators were

required to generate police reports for every detail of the investigation, and

that Appellant could not have discovered the lack of reports with reasonable

diligence, we also conclude he has not demonstrated that the information

was material or exculpatory. Agent Riley testified at the September 19,

2012 post-sentence hearing that he had met with Erika Rosa on a few

occasions for which he had not generated a report. N.T., 9/19/12 at 17 20,

28 29. Appellant acknowledged that the Commonwealth had provided a

report of a February 15, 2011 interview with Ms. Rosa. N.T., 10/[5]/12, at

documented in Supplemental Reports 9 and 14 which were provided to the

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defense. Commonwealth Post-Sentence Hearing Exhibit C-1. None of Ms.

Appellant. N.T., 9/19/12, at 29 33. Agent Riley testified that he questioned

Ms. Rosa about unrelated investigations in Philadelphia as well as other

individuals who had not been charged. Id

County area, not Philadelphia. Indeed, Agent Riley specifically stated that

none of the discussions with Ms. Rosa involved Appellant. Id. at 69 70. He

further testified that Ms. Rosa did not provide any information, exculpatory

or inculpatory, about Appellant. Id. at 70. Further, Erika Rosa was not

called as a witness against Appellant at trial. Moreover, Agent Freddie

Chavez testified at the October 5, 2012 hearing, which was a continuation of

the September 19, 2012 post-sentence hearing, that Erika Rosa never made

any reference to Appellant. N.T., 10/[5]/12, at 75.

Agent Riley testified that he had met with Fausto Ezequiel Valdez-

Cordero on March 6, 2012, but Valdez-Cordero was not cooperative and

down. N.T., 9/19/12 at 37 40. Appellant acknowledged receipt of a report

regarding a January 25, 2012 interview with Valdez-Cordero. N.T.,

10/[5]/12, at 10; Supplemental Report 53; Defense Post-Sentence Hearing

Exhibit U. Valdez-Cordero provided no exculpatory or inculpatory

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information regarding Appellant, and the Commonwealth did not call him as

a witness against Appellant at trial.

The Commonwealth also provided defense counsel with a letter

pertaining to Fausto Ezequiel Valdez-Cordero dated January 26, 2012, which

stated:

[I]nterviews were conducted with Jose Sanchez and Fausto Ezequiel Valdez-Cordero. Jose Sanchez could not identify your

Ezequiel Valdez- voice was not played for Valdez-Cordero.

N.T., 10/[5]/12, at 86-87, 131; Commonwealth Post-Sentence Hearing

Exhibit 7; Defense Post-Sentence Motion Exhibit Q. Agent Chavez testified

that he had contact with Fausto Ezequiel Valdez-Cordero regarding the

regarding oth

57.

Agent Riley testified that he met with Jose Sanchez on more than one

occasion and testified that the first interview was documented in a police

report but the remainder were not. N.T., 9/19/12, at 42. Appellant

acknowledged that he received a report of an August 10, 2011 interview

with Sanchez. N.T., 10/[5]/12, at 11. The January 26, 2012 letter

referenced above also included information pertaining to Sanchez. Id. at

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45, which was provided in discovery. Commonwealth Post-Sentence Hearing

Exhibit 4. Agent Riley testified that a May 25, 2012 interview concerned

potential testimony against co-defendant Franklin Vargas. N.T.,

testimony were consistent with his first documented interview, he

subsequently testified inconsistently on the witness stand. Id. at 45 46.

Mr. Sanchez, however, provided no exculpatory or inculpatory information

against Appellant. Id. at 46. Agent Riley testified that the investigation

revealed that Mr. Sanchez did not have any connection to the Bristol

Township suspects, including Appellant. Id. at 82 83. Mr. Sanchez was not

called as a witness against Appellant at trial.

Agent Riley also testified that he spoke with a number of other

N.T., 9/19/12, at 72. Agent Riley specifically testified that none of the

undocumented interviews had anything to do with Appellant. Id. at 72 73.

He further stated that those individuals did not even know Appellant. Id. at

74 75.

Appellant has failed to meet his burden of showing that the

undocumented interviews had impeachment value. As noted above, Fausto

Ezequiel Valdez-Cordero, Fausto Gabriel Valdez-Cordero, Erika Rosa, and

Jose Sanchez did not know Appellant and had no information about him. As

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the Co

Gabriel Valdez-Cordero, the only two co-defendants to be played the three

entirely predictable given they did not know

31.

Finally, Appellant has not established prejudice. He argues that he

was prejudiced because he would have presented an alternate strategy at

inve

statement in light of the fact that Appellant knew prior to trial that

information pertaining to him, including the alibi investigation and the

discovery of his voice on recordings, was not documented. In particular, at

Commonwealth conceded that it had investigated the alibi and was

withdrawing the charge related to the January 31, 2011 drug delivery. N.T.,

1/17/12, at 25. The Commonwealth specifically advised Appellant and the

trial court that there were no written reports pertaining to the investigation

into the alibi. Id. at 27 28, 35. Defense counsel acknowledged this

representation by the Commonwealth. Id. at 33. Despite this knowledge,

Appellant failed to use the information to undermine the credibility of the

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investigation itself or the credibility of the investigators, as he now claims he

would have done.

In his second issue, Appellant alleges that the Commonwealth failed to

disclose the March 6, 2012 undocumented interview of co-defendant Fausto

Gabriel Valdez-Cordero by state investigators, Agents Riley and Chavez,

where Valdez-Cordero failed to identify Appellant in the presence of the

Attorney. He contends he would have challenged the

suppressing the undocumented March 6, 2012 investigative interview with

co-defendant Fausto Gabriel Valdez- Id. at 42 43. Appellant

This contention, as well, lacks merit. The Commonwealth maintains

that Appellant knew, or should have known that Fausto Gabriel Valdez-

Cordero could not identify him. During the September 19, 2012 post-

sentence hearing, Agent Riley testified that he met with Fausto Gabriel

Valdez-Cordero on two occasions. N.T., 9/19/12, at 33. Appellant

acknowledged that he received a report of a July 21, 2011 interview of

Valdez-Cordero. N.T., 10/[5]/12, at 10; Supplemental Report 47; Defense

Post-Sentence Hearing Exhibit X; Commonwealth Post-Sentence Hearing

Exhibit 4. The Commonwealth also provided a pretrial list of potential

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Commonwealth witnesses, and Valdez-Cordero was named. Commonwealth

Post-Sentence Hearing Exhibit 4. The Commonwealth asserts that Appellant

was expressly advised that Valdez-Cordero could not identify him. At the

October 5, 2012 continuation post-sentence hearing, the Commonwealth

noted, without contradiction, that defense counsel was advised prior to trial

that the Commonwealth would not be calling Fausto Gabriel Valdez-Cordero

he cannot identify your

client /[5]/12, at 144 145 (emphasis added). Thus, Appellant

knew prior to trial that Fausto Gabriel Valdez-Cordero had been interviewed

and was on the list as a potential Commonwealth witness, but he could not

identify Appellant. As our Supreme Court stated:

It is impossible, impractical and unnecessary for the police to record every word said to or by a person during an investigation, as much of it may be irrelevant or may simply corroborate other recorded information. Further, since [the] appellant was provi investigate on his own by interviewing witnesses before the trial about any unrecorded conversations and by cross-examining the witnesses at trial about conversations they had with the police prior to their official statements.

Small, 741 A.2d at 677.

We agree with the trial court that there is no dispute that prior to trial,

Commonwealth agents played the three relevant telephone recordings of

Fausto Gabriel Valdez-Cordero, and Valdez-Cordero could not identify

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ring. Trial Court Opinion, 3/28/13, at 9 (citing N.T., 9/19/12, at 75 76,

100, 103; N.T., 10/[5]/12, at 71 72). Valdez-

the voice on the recordings as that of Appellant did not constitute

-Cordero spoke to

[Appellant] on the telephone, he never met Appellant and did not know his

ting N.T., 9/19/12, at 102

speaker in the intercepted recordings and would not have been in a position

3/28/13, at 10. We agree.

Based on our review of the complete record, the arguments of the

parties, and the applicable law, we conclude that Appellant has failed to

establish a violation of Brady and failed to show how the evidence, alleged

to have been undisclosed, would have caused a different outcome. Small;

Hutchinson.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2014

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