Com. v. Thompson, S.

• Court: Superior Court of Pennsylvania
• Decided: March 10, 2023
• Docket: 1358 WDA 2021
• Status: Unpublished

Opinion

J-S01027-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : STEPHEN MATTHEW THOMPSON : : Appellant : No. 1358 WDA 2021

Appeal from the Judgment of Sentence Entered October 11, 2021, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-CR-0003376-2019.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: March 10, 2023

Stephen Matthews Thompson appeals from the judgment of sentence,

imposing an aggregate sentence of six to twelve years’ incarceration after a

jury convicted him of selling narcotics to a confidential informant and various

related offenses.1 The trial court denied Thompson’s multiple motions to

disclose the identity of the informant. On appeal, he challenges those rulings,

but ignores our deferential standard of review for such matters and, therefore,

is entitled to no relief in that regard. However, the parties and the trial court

agree that part of Thompson’s sentence is illegal. Hence, we modify the

sentence and affirm.

On July 8, 2019, Thompson spoke by phone with an informant, who was

working with the narcotics agents of the Attorney General of Pennsylvania. ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1See 18 Pa.C.S.A. § 7512(a), 35 P.S. § 780-113(a)(16),(30), and 35 P.S. § 780-113(a)(16). J-S01027-23

Thompson and the informant agreed to meet at a gas station in Erie and to

complete a drug buy. Investigators controlled the drug buy to ensure that the

informant had no drugs prior to meeting Thompson. Thus, they strip searched

the informant before and after the transaction, provided $200 in cash to the

informant, and observed the informant and Thompson during the exchange.

Thompson drove a red Chevrolet sedan to the gas station and exited to

pump gas. Meanwhile, the informant got in the back, driver-side seat. The

informant sat in the car with two unknown men and waited for Thompson to

reenter the vehicle. The agents could not see which of the three men gave

narcotics to the informant or took the money. Immediately afterwards, the

informant gave the agents a plastic baggie containing 1.92 grams of fentanyl

and returned $70 in change.

The agents and the confidential informant performed another controlled

buy with Thompson on July 8, 2019 at a different gas station. This time,

Thompson was alone in the red Chevrolet. The informant returned with a

plastic baggie containing 1.06 grams of a heroin/fentanyl mix and no change.

Two months later, the agents arrested Thompson. Pretrial, he moved

to compel disclosure of the informant’s identity three times. The trial court

denied each request, and the matter proceeded to trial.

Among lesser offenses, the jury convicted Thompson of possessing the

1.92 grams of fentanyl on April 8, 2019, but it acquitted him of possessing

that fentanyl with intent to deliver it to the informant. As for the July 8, 2019

transaction, the jury convicted him of both possessing the 1.06 grams of a

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heroin/fentanyl mix and possessing that mix with intent to deliver it to the

informant.

The trial court sentenced Thompson as follows:

Count Two: Criminal Use of Communication Facility [on April 8, 2019] — one to two years of incarceration;

Count Three: Possession [on April 8, 2019] — six months to one year of incarceration, consecutive to Count Four;

Count Four: Unlawful Delivery [on July 8, 2019] — five to 10 years of incarceration, consecutive to Count Two and concurrent with Count Three;

Count Five: Criminal Use of Communication Facility [on July 8, 2019] — one to two years of incarceration, concurrent with Count Two;

Count Six Possession [on July 8, 2019] – six months to one year of incarceration, concurrent with Count Four.

Trial Court Opinion, 6/6/22, at 1-2. Notably, the trial court did not merge the

crime of possession on July 8, 2019 (Count Six) with the crime of possession

with intent to deliver on the same day (Count Four).

Thompson raises two appellate issues:

1. Did the trial court commit an abuse of discretion and/or error of law when it denied [Thompson’s] repeated requests to disclose the identity of the confidential informant and where the testimony of the CI would have materially aided the defense, given that the CI’s observations of the exchanges/number of persons in the vehicle during the exchanges could not be obtained from another disinterested source?

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2. Did the trial court impose an illegal sentence at count 6, as a conviction for simple possession merges with the count 4 conviction for possession with intent to deliver?

Thompson’s Brief at 9 (some capitalization removed). We address the two

issues in turn.

First, Thompson challenges the trial court’s refusal to order disclosure

of the confidential informant’s identity.

At the outset of his brief, Thompson correctly acknowledges that “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.” Id. at 4 (quoting Commonwealth v. Koone, 190 A.3d 1204,

1208 (Pa. Super. 2018)). Where, as here, the informant was an eyewitness

to the transaction in question, the trial court’s discretion is established under

Pennsylvania Rule of Criminal Procedure 573(B)(2)(a)(i).

Furthermore, Thompson correctly defines an abuse of discretion. It “is

not merely an error of judgment but is rather [(1)] the overriding or

misapplication of the law, [(2)] the exercise of judgment that is manifestly

unreasonable, or [(3)] the result of bias, prejudice, ill-will, or partiality, as

shown by the evidence of record.” Thompson’s Brief at 4 (quoting

Commonwealth v. Sandoval, 266 A.3d 1098, 1101 (Pa. Super. 2021)).

However, he never indicates which type of abuse of discretion the trial court

supposedly committed.

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Rather than explaining which abuse occurred, Thompson argues why

the trial court should have ordered disclosure of the informant’s identity, as if

our standard of review were de novo. He contends, because no agent saw

him hand the drugs to the informant, that he “established materiality to his

defense.” Id. at 29. He further claims that:

[He] has also established the reasonableness of this request [for disclosure] as the Commonwealth never offered any pretrial explanation that this request would jeopardize anyone’s safety. [Thompson, therefore,] asks this Honorable Court to find the trial court committed an abuse of discretion when it denied his request and remand for a new trial.

Id. In other words, he thinks the trial court erred in judgment by finding a

lack of materiality and of reasonableness regarding his disclosure requests.

Even if we disagreed with the trial court’s judgment, Pennsylvania courts

have long held that an “abuse of discretion is not merely an error of judgment,

but rather a misapplication of the law or an unreasonable exercise of

judgment.” Johnson v. Johnson, 222 A.3d 787, 789 (Pa. Super. 2019)

(emphasis added). Therefore, it is insufficient to convince us that “the lower

tribunal reached a decision contrary to the decision that the appellate court

would have reached.” B.B. v. Dep't of Pub. Welfare, 118 A.3d 482, 485

(Pa. Cmwlth. 2015) (some punctuation omitted). An appellant must

demonstrate one of the three abuses described above. See Womer, surpa.

We review for abuse of discretion, because, according to the Supreme

Court of the United States, “no fixed rule with respect to disclosure of the

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confidential informant’s identity is justifiable.” Commonwealth v. Withrow,

932 A.2d 138, 140 (Pa. Super. 2007) (quoting Commonwealth v. Carter,

233 A.2d 284, 287 (Pa. 1967) (quoting Roviaro v. United States, 353 U.S.

53, 62, (1957))) (some punctuation omitted). “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.” Roviaro, 353 U.S. at 62.

“Whether a proper balance renders nondisclosure erroneous must depend on

the particular circumstances of each case, taking into consideration the crime

charged, the possible defenses, the possible significance of the informer's

testimony, and other relevant factors.” Id. Thus, this is a fact-driven inquiry,

which the Supreme Court has committed to the sound discretion of trial courts

across the nation.

Here, the trial court heard the testimony of the investigating agent at a

suppression hearing regarding his role in and observations of the two

controlled buys. The agent testified that he witnessed the informant enter

Thompson’s car without drugs and saw Thompson in and/or around the

vehicle. He then saw the informant return with the drugs on both occasions

without interacting with anyone else after leaving the Chevrolet. Based on

the agent’s testimony, the court reasoned that Thompson “failed to make a

threshold showing the informant’s identity was material to his defense and the

request for disclosure was reasonable.” Trial Court Opinion, 6/6/22, at 11.

The trial court could reasonably infer that the identity of the informant

was immaterial to Thompson’s defense, because the agent’s eyewitness

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observations, standing alone, placed Thompson at the scene of both crimes.

The agent’s testimony, coupled with Thompson’s phone call and texts to set

up the drug buys, could lead a reasonable mind to conclude that the informant

had no exculpatory evidence. As such, the court could rationally hold that the

public’s interest in shielding the informant’s identity for use by the

Commonwealth in future controlled buys outweighed Thompson’s right to

prepare his defense.

Indeed, Thompson does not argue, much less convince us, that the trial

court’s inferences and conclusions were manifestly unreasonable or that they

overrode or misapplied the law. Nor does he argue that the trial court’s

determinations were the result of bias, prejudice, or ill-will. Hence, he fails to

persuade us that an abuse of discretion occurred. His first appellate issue is

meritless.

Turing to Thompson’s second issue, he asserts that his sentence on the

sixth count (possession of 1.06 grams of a heroin/fentanyl mix on July 8,

2019) is illegal, because that count must merge, for sentencing purposes, with

the greater offense of the fourth count (possession of the heroin/fentanyl mix

with intent to deliver on July 8, 2019). The trial court and the Commonwealth

agree that merger was proper. See id.; see also Commonwealth’s Brief at

5-6.

“Issues relating to the legality of a sentence are questions of law . . . .”

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008), appeal

denied, 955 A.2d 356 (Pa. 2008). As such, our “standard of review over such

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questions is de novo, and our scope of review is plenary.” Commonwealth

v. Ramos, 197 A.3d 766, 769 (Pa. Super. 2018). “If no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction.” Id.

Crimes merge at sentencing when they “arise from a single criminal act

and all of the statutory elements of one offense are included in the statutory

elements of the other offense.” 42 Pa.C.S.A. § 9765. “Where crimes merge

for sentencing purposes, the court may sentence the defendant only on the

higher graded offense.” Id.

Here, it is undisputed that Thompson’s crime of possession on July 8,

2019, was the same criminal act and had all the statutory elements of his July

8, 2019, crime of possession with intent to deliver. Thus, the trial court should

have merged the crimes for purposes of sentencing and only had authority to

sentence Thompson on the higher graded offense of possession with intent to

deliver. Accordingly, the trial court erred, as matter of law, when it imposed

a concurrent sentence of six months to one year on count six.

“An appellate court may . . . modify . . . any order brought before it for

review . . . .” 42 Pa.C.S.A. § 706. Because the parties agree the sentence

needs correction and because nullifying the shorter, concurrent sentence at

count six will not disrupt the sentencing scheme, we modify Thompson’s

sentence in the interest of judicial economy.

The appealed-from order is hereby modified as follows:

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AND NOW, this 11th day of October, 2021, having been convicted in the above-captioned case, the defendant is sentenced by this Court as follows:

* * *

Count 6 - 35 § 780-113 §§ A16 - Int Poss Contr Subst by Per Not Reg (M) to merge with Count 4, supra, no further penalty.

Trial Court Order, 10/11/21.

Judgment of sentence affirmed as modified.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2023

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