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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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RHAMIN A. TURNER :
:
Appellant : No. 726 MDA 2018
Appeal from the Judgment of Sentence April 19, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000496-2017, CP-36-CR-0000937-2017, CP-36-CR-0001044-2017
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J. MEMORANDUM BY LAZARUS, J.: FILED MARCH 01, 2019 Rhamin A. Turner appeals from his judgment of sentence, 1 entered in the Court of Common Pleas of Lancaster County, after a jury found him guilty
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1 We note that Turner filed one notice of appeal for three docket numbers. Our Supreme Court has held that “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case.” Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018). However, the Court in Walker declined to apply the rule to the case before it, because to do so would run “contrary to decades of case law from [the Pennsylvania Supreme Court] and the intermediate appellate courts that, while disapproving of the practice of failing to file multiple appeals, seldom quashed appeals as a result.” Id. Although the Court instructed that, prospectively, a failure to file a notice of appeal for each lower court docket will result in quashal of the appeal, Turner’s notice of appeal was filed prior to the Walker ruling. Accordingly, Walker is not controlling, and we decline to quash Turner’s appeal.
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of three counts each of possession with intent to deliver cocaine (“PWID”)2 and criminal use of a communication facility.3 Upon careful review, we affirm.
Turner was convicted of the above offenses after engaging in three separate drug transactions with a confidential informant (“CI”). The transactions were conducted under the auspices of the Selective Enforcement Unit of the Lancaster City Bureau of Police and were described as “buy-walk” transactions, in which an undercover officer uses a CI to “go to various areas in Lancaster to attempt to purchase controlled substances from people. After the purchase is made, the suspect in the investigation would not be stopped; rather, the suspect would be allowed to walk away.” Trial Court Opinion, at 12-13 (citations to record omitted). The operation was run by Officer Jared Snader, with the transactions occurring in April, May, and June of 2016. Three separate criminal informations were filed against Turner on February 6, 2017, March 6, 2017 and March 9, 2017.
On appeal, Turner raises two issues for our review:
1. Whether the trial court erred when it denied pre-trial the production of the confidential [i]nformant. Since identity was the defense, the court’s denial was a significant hindrance to [Turner’s] defense and denied him his constitutional right to confront witnesses against him and to compel witnesses to appear[.]
2. Whether the evidence was insufficient as a matter of law to convict [Turner] of the relevant drug sales. There was no identification by police, the informant was not produced, there was
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2 35 P.S. § 780-113(a)(30). 3 18 Pa.C.S.A. § 7512(a).
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no search of [Turner’s] house, no audio/video, no pictures, no fingerprints, no DNA and no recovery of prerecorded money[.]
Brief of Appellant, at 5.
Turner first asserts that the trial court erred in failing to grant his motion to produce the CI. Turner argues that, because his defense was one of mistaken identity, “the identity and credibility of the informant was completely material to the asserted defense as there was only a single Commonwealth [eye]witness[.]” Brief of Appellant, at 11. Turner relies upon our Supreme Court’s decision in Commonwealth v. Payne, 656 A.2d 77 (Pa. 1994), in which the Court reversed the trial court’s denial of the defendant’s motion to produce a CI where the sole witness to the sale was an undercover state trooper. Turner is entitled to no relief.
We begin by noting that “[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. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (citation omitted).
Pennsylvania Rule of Criminal Procedure 305(B) provides as follows:
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(i) the names and addresses of eyewitnesses[.]
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Pa.R.Crim.P. 305(B)(2)(a)(i). The Pennsylvania Supreme Court has adopted the following guidelines regarding the disclosure of confidential informants:
We believe that no fixed rule with respect to disclosure [of the confidential informant’s identity] is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.
Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.
Commonwealth v. Carter, 233 A.2d 284, 287 (Pa. 1967), quoting Roviaro v. United States, 353 U.S. 53, 60-62 (1957). This balance is initially weighted toward the Commonwealth, which holds a qualified privilege to maintain an informant’s confidentiality to preserve the public’s interest in effective law enforcement. Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1998). However, the balance tips in favor of disclosure where guilt is found solely on police testimony from a single observation and testimony from a disinterested source, such as the informant, is available. Id. However, “[w]here other corroboration of the officer’s testimony exists, disclosure of the informant’s identity is, of course, not necessarily required.” Payne, 656 A.2d at 79.
[A] defendant seeking production of a confidential informant at a suppression hearing must show that production is material to his defense, reasonable, and in the interest of justice. By this we mean that the defendant must demonstrate some good faith basis in fact to believe that a police officer-affiant willfully has included misstatements of facts in an affidavit of probable cause which misrepresents either the
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existence of the informant or the information conveyed by the informant; that without the informant’s information there would not have been probable cause; and that production of the informant is the only way in which the defendant can substantiate his claim.
Commonwealth v. Bonasorte, 486 A.2d 1361, 1374 (Pa. 1984).
Here, the trial court summarized the evidence elicited at the evidentiary hearing on Turner’s motion as follows:
[T]he instant matters, which were charged by way of three separate Criminal Informations, involved three distinct alleged drug transactions between [Turner] and a [CI]. The first transaction was alleged to have occurred on April 29, 2016 at 1360 Columbia Avenue, Lancaster City, Lancaster County, Pennsylvania. The second transaction was alleged to have occurred on May 12, 2016 in the parking lot of the Edward Hand Middle School, located at 431 South Ann Street, Lancaster City, Lancaster County, Pennsylvania. The final transaction was alleged to have occurred on June 2, 2016 at 653 Columbia Avenue, Lancaster City, Lancaster County, Pennsylvania. At the evidentiary hearing, [Turner] acknowledged that the Commonwealth alleged that an undercover law enforcement officer was near the scene of each suspected transaction. As such, the matters at bar involve more [of] an isolated incident, or a single opportunity for the investigating law enforcement officers to view the perpetrator. Rather, the instant matters involve three separate criminal transactions occurring over thirty-four days.
Additionally, at the evidentiary hearing, the Commonwealth established the existence of a great deal of circumstantial evidence which would corroborate the testimony of the investigating law enforcement officers at trial. Specifically, [Turner] acknowledged that he was aware that the [CI] was dealing with an individual, who[] was known by the nickname of “Pop[.]” The Commonwealth established, by the introduction of numerous postings from [Turner’s] Facebook page, that many people referred to [Turner] as “Pop[.]” [Turner] also conceded that his wife owns a green Nissan Altima automobile and that said automobile was alleged to have been used by the suspect in two of the instant drug transactions. [Turner], further, acknowledged that he resides with his mother-in-law, who owns a Jaguar vehicle,
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and that such automobile was alleged to have been used by the suspect in the other alleged drug transaction. Finally, [Turner]
acknowledged that he was aware that one of the transactions was alleged to have occurred in the parking lot of the Edward Hand Middle School and that, during such transaction, the suspect indicated that he was a coach at the facility. During his testimony, [Turner] admitted that he was involved in coaching youth athletics at the school. As such, notwithstanding the limited evidence presented at the evidentiary hearing, the Commonwealth demonstrated the existence of ample evidence to corroborate the testimony of any investigating law enforcement officers at trial in this matter.
Trial Court Opinion, at 8-9 (citations to record omitted).
We agree with the trial court that Turner failed to demonstrate that the testimony of the CI was material to his defense in light of the substantial evidence corroborating the multiple eyewitness identifications by Officer Snader. That corroborating evidence distinguishes this matter from Payne. There,
an undercover Pennsylvania State Police Officer and a [CI], investigating drug activity, saw Appellant and a female standing on a corner. The [CI] pointed out or “fingered” Appellant and then went to Appellant and spoke to him. On returning to the trooper’s vehicle, the [CI] told the trooper that they could make a drug purchase from Appellant. Appellant and the woman drove off to another location, followed by the police vehicle. A back-up police vehicle apparently followed but was not further involved in the ensuing drug purchase. After dropping off the Appellant, the woman departed in her car. The trooper and the [CI] followed the Appellant on foot between two buildings where the trooper in the informant’s presence paid the Appellant for 7.4 grams of cocaine.
The so-called informant was now clearly a witness to the crime as well. This transaction took place on May 11, 1990, but the Appellant was not arrested until December 10 of that year.
Neither the officer nor any other police had any contact with the Appellant in the interim, although the officer said he saw Appellant in the area on several later occasions.
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Payne, 656 A.2d at 77–78. The foregoing scenario represented the totality of the Commonwealth’s identification evidence. At trial, Payne raised a defense of mistaken identity. The trial court denied Payne’s motion, and this Court affirmed. The Supreme Court reversed. In doing so, it relied upon its earlier decision in Commonwealth v. Carter, 233 A.2d 284 (Pa. 1967). There, the Court
accepted the government’s privilege of non-disclosure but ruled that the privilege must give way where disclosure of an eyewitness’s identity is relevant and helpful to the defense or is necessary to a fair determination of a cause. . . . We further held that the proper balance between the prosecution and defense necessarily must tip in favor of disclosure where guilt is based solely on a single observation by the police but testimony from a “more disinterested source is available.” Where other corroboration of the officer’s testimony exists, disclosure of the informant's identity is, of course, not necessarily required.
Payne, 656 A.2d at 79. Because the sole evidence of identity in Payne was the testimony of a single observation by one police officer, and because the criminal information was not filed for another seven months after the undercover buy, the Court held that disclosure was warranted in light of the defendant’s claim of mistaken identity.
Conversely, here, Officer Snader observed three separate transactions over a period of more than one month. More significantly, Officer Snader’s eyewitness identification of Turner was bolstered by substantial corroborative information, thus minimizing the likelihood that Turner was incorrectly identified as the person who repeatedly sold drugs to the CI. Specifically, the CI told Officer Snader he knew Turner as “Pop,” a name by which people
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referred to Turner on his own Facebook page and which Turner conceded was
a name by which people called him.4 Additionally, at the first and third
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4 The following exchange took place during Turner’s cross-examination at the motion hearing:
Q: Okay. You say your nickname is not Pop?
A: My name is Rhamin Turner. My grandkids call me Pop-Pop.
Q: Do you have anyone that calls you Pop?
A: No.
Q: Do you have a Facebook page, sir?
A: Yes, I do.
Q: And what’s your name on your Facebook page?
A: Rhamin Turner, Sr.
Q: And who is Elizabeth Louis?
A: I don’t know.
Q: She’s friends with you on Facebook?
A: Probably, yeah.
Q: You know her family?
A: Yes.
Q: Does she call you Pop?
A: Probably. I don't know.
Q: What about Darryl Wiley, who’s Darryl Wiley?
A: A Facebook friend.
Q: Does he call you Pop?
A: Probably.
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transactions, on April 29, 2016, and June 2, 2016, the person who sold drugs to the CI was driving a green Nissan Altima—the same make, model and color as a car owned by Turner’s wife. On the date of the third transaction, May 12, 2016, the person who sold the CI drugs was driving a silver Jaguar XJ8, the same make, model and color as a car owned by Turner’s mother-in-law, with whom Turner resided. Finally, the May 12, 2016 sale took place in the parking lot of a middle school where Turner testified that he coached sports. During that sale, “Pop” mentioned to the CI that he was a coach at that school.
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...
Q: Sir, I've handed you what’s been marked Commonwealth’s Exhibit 1. Do you recognize that photograph?
A: Yes, I do.
Q: And what is that photograph of?
A: Of me coming out of Planet Fitness like four years ago.
Q: Okay. And are there comments on the side of that photograph?
A: Yes, it is.
Q: Is there a comment from Elizabeth Louis calling you Pop?
A: Yeah.
Q: Is there a comment from Darryl Wiley calling you Pop?
A: Yes.
Q: So people do call you Pop?
A: Yeah, I guess, yes.
N.T. Motion Hearing, 9/14/17, at 14-16 (emphasis added).
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In light of the foregoing, we conclude that the information gathered by police to corroborate Officer Snader’s eyewitness identification of Turner mitigated the risk of misidentification such that the trial court could reasonably conclude that production of the CI was not required under Carter and Payne. Accordingly, we find no abuse of discretion by the trial court.
Turner also claims that the evidence presented by the Commonwealth was insufficient to support his convictions.
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 a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the 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 actually received must be considered. Finally, the finder 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. Matthews, 196 A.3d 242, 249 (Pa. Super. 2018), quoting Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010) (citations omitted).
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We have reviewed the certified record, the pertinent law, and the Appellant’s brief5 and conclude that the opinion authored by the Honorable Merrill M. Spahn, Jr., thoroughly and correctly disposes of Turner’s sufficiency claim. Accordingly, we affirm on the basis of Judge Spahn’s opinion and instruct the parties to attach a copy of that document in the event of further proceedings in this matter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/01/2019
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5 The Commonwealth did not submit a brief in this matter, instead opting to rely on the trial court’s opinion.
Circulated 02/04/2019 11:21 AM
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1282-83 (Pa. 1996). The privilege is not absolute, however, and must give way under the appropriate circumstances.
When moving for disclosure, the defendant must first establish that the identity of the confidential informant is material to the defense and that such request is reasonable in nature. Interest of D.B., 820 A.2d 820, 822 (Pa. Super. 2003). If the defendant satisfies this burden, then the trial court must apply a balancing test, with "the balance initially weigh[ ing] in favor of maintaining confidentiality of the informant's identity in order to preserve the public's interest in effective law enforcement." Commonwealth v. McCulligan, 905 A.2d 983,.989 (Pa. Super. 2006). The trial court may not exercise its discretion to determine whether disclosure is required until the defendant makes the threshold showing of materiality and reasonableness. Commonwealth v. Jordan, 125 A.3d 55. 63 (Pa. Super. 2015)(en bane).
Regarding the threshold inquiry of materiality and reasonableness, the Pennsylvania Superior Court has held,
... the defendant need not predict exactly what the informant will say, but he must demonstrate a reasonable possibility the informant could give evidence that would exonerate him. More than a mere assertion that disclosure of the informant's identity might be helpful is necessary. Only after this threshold showing that the information is material and the request reasonable is the trial court called upon to determine whether the information is to be revealed.
Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001).
"[T]he defendant must lay an evidentiary basis or foundation that the confidential informant possesses relevant information that will materially aid the defendant in presenting his or her defense and that the information is not obtainable from another source." Commonwealth v. Hritz, 663 A.2d 775, 780 (Pa. Super. 1995). See, Commonwealth v. Eicher, 605 A.2d 337, 348 (Pa. Super. 1992) (appellant seeking disclosure of informant must have "concrete evidence"
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disclosure of the informant's identity was material. It is specifically noted that Defendant, is his pre-trial motion and testimony at the evidentiaryhearing, made a bare assertion of mistaken identity. Defendant failed to present any other evidence or argument suggestive of a reasonable possibility that disclosure of the informant's identity would be helpful. Said bare allegation is insufficient for Defendant to carry his burden when viewed considering the other evidence presented by the matters at bar.
At the evidentiary hearing, the Commonwealth established the instant matters, which were charged by way of three separate Criminal Informations, involved three distinct alleged drug transactions between Defendant and a confidential informant. The first transaction was alleged to have occurred on April 29, 2016 at 1360 Columbia Avenue, Lancaster City, Lancaster County, Pennsylvania. (N.T. Evid. Hrg., p. 8). The second transaction was alleged to have occurred on May 12, 2016 in the parking lot of the Edward Hand Middle School, located at 431 South Ann Street, Lancaster City, Lancaster County, Pennsylvania. (N.T. Evid. Hrg., p. 7). The final transaction was alleged to have occurred on June 2, 2016 at 653 Columbia Avenue, Lancaster City, Lancaster County, Pennsylvania. (N.T. Evid. Hrg., pgs. 5- 7). At the evidentiary hearing, Defendant acknowledged that the Commonwealth alleged that an undercover law enforcement officer was near the scene of each suspected transaction. (N.T. Evid. Hrg., p. 8). As such, the matters at bar involve more an isolated incident, or a single opportunity for the investigating law enforcement officers to view the perpetrator. Rather, the instant matters involve three separate criminal transactions occurring over thirty-four days.
Additionally, at the evidentiary hearing, the Commonwealth established the existence of a great deal of circumstantial evidence which would corroborate the testimony of the investigating law enforcement officers at trial. Specifically, Defendant acknowledged that he
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a photograph of Defendant and recognized him as the person who sold the crack cocaine to the informant on the first, second and third buy. (N.T. October 24, 2017, p. 90).
The court notes that Officer Snader was present on a subsequent occasion when Defendant was asked whether he goes by the nickname, "Pop", and he said he did not, but that his grandchildren referred to him as "Pop Pop." (N.T. October 24, 2017, p. 91). After being confronted with a Facebook photo where different people called him "Pop", Defendant admitted
that some people do call him "Pop." ili!J.: Defendant confirmed that the Facebook photo was from his Facebook page and that it was him. (Id.). Defendant also confirmed that he drives the
car that is registered to his wife. (N.T. October 24, 2017, pp. 92-93). Defendant admitted that he was a coach at Hand Middle School. (N.T. October 24, 2017, p. 93).
Andrew Mease has been employed as a police officer with the Lancaster City Bureau of Police for fifteen years assigned to the Selective Enforcement Unit for the past six years. (N.T. October 24, 2017, pp. 131-132). Officer Mease was involved in the detail on April 29, 2016 as a third surveillance officer to observe the undercover officer and possibly the transaction as it occurs. (N.T. October 24, 2017, p. 132). Officer Mease observed the confidential informant leave the undercover vehicle and approach a vehicle, interact with a subject in the car and return to the undercover vehicle. (Id.). Officer Mease recalled that the vehicle was green in color. (N.T. October 24, 2017., p. 133). Officer Mease also observed Defendant exit the green Nissan Ultima (sic) and walk toward the Giant Store. (N.T. October 24, 2017, pp. 133-134).
Christy Bruno is a forensic scientist employed with the Pennsylvania State Police since 2007. (N.T. October 25, 2017, pp. 142-143). She identified the contents of the sealed envelopes containing the substances purchased in this matter as cocaine. (N.T. October 25, 2017, pp. 146- 152).
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vehicle. (Id.). Officer Hagy field tested the substance and confirmed it was cocaine. (N.T. October 25, 2017, pp. 172-173).
Steve Reich has been employed as a police sergeant with the Lancaster City Police for ten years. (N.T. October 25, 2017, p. 186). He was assigned to the Selective Enforcement Unit from April through June 2016. (N.T. October 25, 2017, pp. 186-187). Sergeant Reich was the secondary surveillance on April 29, 2016. (N.T. October 25, 2017, p. 187). He observed Defendant arrive in a green Nissan Ultima (sic) to the location of the buy. (N.T. October 25, 2017, pp. 187-188). He further observed the confidential informant exit the undercover officer's vehicle, approach Defendant's vehicle, engage in a short encounter with Defendant, and then come back to the undercover vehicle. (N. T. October 25, 2017, p. 18 8). Sergeant Reich described a black male with a bald head and beard exit the vehicle and walk into the Giant Store. (Id.). Inasmuch as Sergeant Reich already obtained previous information that the subject vehicle was registered to an owner residing at 1203 Elm A venue, he drove to that location, which was two blocks from the Giant Store. (N.T. October 25, 2017, p. 189). When Sergeant Reich arrived at the residence, he observed that the subject vehicle was parked two houses west of the address and there was no one inside the vehicle. (Id.). Sergeant Reich came into contact with a Manheim Township police officer who ran the address through a general database and determined that it was Defendant's residence. (N.T. October 25, 2017, p. 190). Therefore, once Sergeant Reich obtained Defendant's name and date of birth, he was able to produce a photograph of Defendant, which he showed to Officer Snader, who was quick to identify
Defendant from the buy. iliU Sergeant Reich was the primary surveillance for the buy-walk detail on May 12, 2016.
(Id.). He searched the confidential informant and traveled separately to the buy location at Hand