Com. v. Green, T.

• Court: Superior Court of Pennsylvania
• Decided: February 6, 2020
• Docket: 1937 EDA 2019
• Status: Unpublished

Opinion

J-S71030-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY NATHANIEL GREEN : : Appellant : No. 1937 EDA 2019

Appeal from the Order Entered June 5, 2019 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000383-2018

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 06, 2020

Timothy Nathaniel Green (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of two counts of possession of a

controlled substance, and one count each of possession with intent to deliver

a controlled substance, possession of drug paraphernalia, persons not to

possess firearms, and criminal use of a communications facility.1 We affirm.

On January 8, 2018, Detective Christopher Shelly (Detective Shelly) of

the Stroudsburg Area Regional Police Department, arranged for a confidential

informant (CI) to engage in a controlled purchase of narcotics from Appellant’s

residence, located at 166 North Courtland Street, East Stroudsburg,

Pennsylvania (the Property), which Appellant shared with other individuals.

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1 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. §§ 6105(a)(1), 7512(a). J-S71030-19

The CI used a cell phone to contact Appellant to arrange the controlled

purchase. Detective Shelly provided the CI with identifiable U.S. currency and

observed the CI enter the Property, and then exit a few minutes later.

Immediately thereafter, the CI gave Detective Shelly heroin that the CI had

purchased while inside the Property.

One day later, Detective Shelly again used the CI to conduct a controlled

purchase at the Property, employing the same procedure as the prior

controlled purchase.2 After exiting the Property, the CI provided Detective

Shelly with two bags of heroin that were marked “Sexy Lady.” Based on the

controlled buys, Detective Shelly sought and obtained a search warrant for

the Property.

Police executed the search warrant on January 12, 2018. The police

located Appellant in his bedroom, and discovered in that room 30 bags of

heroin marked “Sexy Lady,” crack cocaine, 2 digital scales, a cell phone, and

$500 in U.S. currency. The phone number of the cell phone seized matched

the same number that the CI had previously contacted to arrange the

controlled buys. The police also recovered two firearms, one in the basement

and the other in a closet area.

2We collectively refer to the controlled purchases conducted on January 8 and 9, 2018 as “the controlled buys.”

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Following the search, the police arrested Appellant and transported him

to the police station for questioning, prior to which police advised him of his

Miranda3 rights. Detective Shelly testified that during the video-recorded

interview, Appellant “admitted that that was his heroin[,]” and “admitted that

he sells this heroin to various customers.” N.T., 3/14/19, at 46. Appellant

further admitted to owning all of the contraband seized from the Property,

including the firearms. See id. at 41-42, 46. The police charged Appellant

with the above-mentioned crimes.4

The matter proceeded to a jury trial on March 14, 2019. On the morning

of the first day of trial, after the jury had been sworn in, Appellant’s counsel

filed a motion in limine, seeking to suppress any mention of the controlled

buys, and to reveal the identity of the CI.5 The trial court discussed the motion

with defense counsel and the prosecutor at sidebar, and denied the motion.

At the close of trial, the jury rendered its guilty verdicts.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 Importantly, the charges pertained only to the contraband seized from the Property. The Commonwealth did not charge Appellant with regard to the controlled buys. Moreover, Detective Shelly never testified that Appellant was the individual inside the Property who sold the heroin to the CI during the controlled buys.

5 Appellant never filed a pretrial discovery motion seeking to reveal the identity of the CI.

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On June 5, 2019, the trial court imposed an aggregate sentence of 7 to

14 years in prison. Appellant filed a timely notice of appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.

Appellant now presents the following issues for our review:

I. Whether the trial court erred and abused its discretion in denying Appellant’s Motion in Limine to prohibit testimony related to any drug transactions which involved a Confidential Informant[,] which was the sole basis for obtaining a search warrant for Appellant’s home[?]

II. Whether the trial court erred in failing to compel the Commonwealth to produce the Confidential Informant at trial or disclose his/her identity, therefore depriving Appellant of his Sixth Amendment right to confront his accuser[?]

Brief for Appellant at 6 (suggested answers to questions omitted).

Appellant addresses both of his issues simultaneously in the argument

section of his brief; we will do likewise. Appellant contends that the trial court

erred in failing to (1) preclude the Commonwealth from introducing evidence

of the controlled buys; and (2) compel disclosure of the CI’s identity. See id.

at 11-14. According to Appellant, “[t]he identity of the CI is of crucial

importance to the defense in that the case consisted entirely of information

derived from a witness who was shielded from cross-examination[,] and

whose credibility could not be questioned.” Id. at 13.

Our standard of review of a denial of a motion in limine is as follows:

When ruling on a trial court’s decision to grant or deny a motion in limine, we apply an evidentiary abuse of discretion standard of review. The admission of evidence is committed to the sound

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discretion of the trial court, and a trial court’s ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Mangel, 181 A.3d 1154, 1158 (Pa. Super. 2018) (citation

omitted). Moreover, “[o]ur 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. Jordan, 125 A.3d 55,

62 (Pa. Super. 2015) (en banc) (citation omitted).

Pursuant to Pennsylvania Rule of Criminal Procedure 573, a trial court

has the discretion to require the Commonwealth to reveal the names and

addresses of all eyewitnesses, including confidential informants, where a

defendant makes a showing of material need and reasonableness.

Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010) (citing

Pa.R.Crim.P. 573(B)(2)(a)(i)). Our Supreme Court “has repeatedly

recognized the importance of the Commonwealth’s qualified privilege to

maintain the confidentiality of an informant in order to preserve the public’s

interest in effective law enforcement.” Marsh, 997 A.2d at 324 (citation

omitted); see also id. (stating that the safety of the CI is a controlling factor

in determining whether to reveal his or her identity). In order for a defendant

to overcome the Commonwealth’s qualified privilege, the defendant “must

demonstrate at least a reasonable possibility the informant’s testimony would

exonerate him.” Commonwealth v. Withrow, 932 A.2d 138, 141 (Pa.

Super. 2007). “Only after the defendant shows that the identity of the

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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.” Commonwealth v. Koonce, 190 A.3d 1204, 1209 (Pa.

Super. 2018) (citation omitted).

Here, Appellant is incorrect in asserting that the Commonwealth’s “case

consisted entirely of information derived from [the CI.]” Brief for Appellant at

13. Rather, the Commonwealth’s case was predicated upon the contraband

seized from the Property, which Appellant admitted to possessing. See

Withrow, 932 A.2d at 141-43 (holding that the trial court erred in granting

defendant’s motion to disclose the identity of the CI who had witnessed the

defendant and a police officer engage in a drug transaction, because the

transaction was not the basis of the charges; rather, the charges were based

on the narcotics that police discovered while executing a search warrant of

defendant’s home); see also id. at 141 (emphasizing that “the CI was not an

eyewitness to the offense with which the defendant was charged.” (emphasis

in original)).6 Further, Appellant did not raise a challenge to the lawfulness of

6 Moreover, Appellant fails to advance any plausible explanation of how disclosure of the CI’s identity, and cross-examination of him or her, could have exonerated Appellant, or even aided the defense, where the charges pertained only to the contraband found in the Property. See Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (stating that a defendant must establish more than a mere assertion that disclosure of the CI’s identity “might be helpful.”).

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the search warrant before the trial court, see Pa.R.A.P. 302(a), nor does he

on appeal. See Withrow, 932 A.2d at 142 (stating that “[b]ecause Withrow

did not attack the validity of the warrant, the CI’s testimony was not material

to his defense.”). Accordingly, the trial court did not abuse its discretion in

denying the motion in limine, and Appellant’s issues do not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/6/20

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