Opinion
J-S36043-16 No. 2030 MDA 2015
04-20-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHAWNTAY LEE HANDY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 29, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004537--2014 BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant Shawntay Lee Handy appeals the judgment of sentence entered in the Court of Common Pleas of York County on October 29, 2015, following his conviction of Manufacture, Deliver or Possession with Intent to Manufacture of Deliver a Controlled Substance (cocaine). After our review, we affirm on the basis of the Opinion authored by the Honorable Richard K. Renn.
35 Pa.C.S.A. § 780-113(a)(30).
The trial court briefly set forth the relevant facts and procedural history herein as follows:
On December 19, 2013, undercover officers observed a large, black male meet with a confidential informant (CI) in the area of 955 East Princess Street in the City of York. After the
meeting, the CI turned over a bag of cocaine. On May 7, 2014, undercover officers again observed a large, black male, who was now known to them as the Appellant, meet with the same CI in the same area. Again, after the meeting, the CI turned over a bag of cocaine.Trial Court Opinion, filed 1/4/16, at 1-2.
The Appellant was arrested on May 7, 2014, and released on bail on May 14, 2014. After seeking an extension of time to file Omnibus Pre-Trial Motions, the Appellant did file a Motion to Compel Disclosure of the Identity of the CI on February 23, 2015. On April 15, 2015, we granted the Appellant's motion with respect to the December 19, 2013, transaction, but denied it with respect to the May 7, 2014[,] transaction. Thus, the Commonwealth was only required to disclose the identity of the CI if it chose to proceed on both counts.
The Appellant's case was listed for trial during the May term of trials, but we were unable to try the case until September 14, 2015. Based on our ruling at the April 15th hearing, the Commonwealth withdrew Count 1, which was based on the December 19, 2013, transaction. A jury found the Appellant guilty of Count 2 on September 15, 2015. On October 29, 2015, we sentenced the Appellant to a term of 30 months to 60 months['] imprisonment.
In light of the PSI, the trial court explained on the record it felt a sentence in the aggravated range was proper.
Appellant filed a timely notice of appeal on November 16, 2015, and the requirements of Pa.R.A.P. 1925 have been satisfied. In his brief, Appellant presents the following statement of the questions involved:
1)
a) Did the lower court err in denying a motion to reveal the identity of a confidential informant who played a critical role in the alleged crime charged and was the only eye witness other than police, where the Commonwealth failed to demonstrate any reason for nondisclosure that outweighed Appellant's right to prepare a defense?
b) Did the lower court err in failing to order disclosure of the identity of the confidential informant as to a second count, where the court had already ordered the disclosure of the informant for an initial transaction, related to count one, where both counts stem from the same ongoing investigation?Brief for Appellant at 3.
2) Did the lower court err when it found that the evidence was sufficient to support the conviction for Possession with intent to deliver where no government witness actually observed an exchange of drugs for money?
We review a claim that a trial court erred ruling upon a request for the disclosure of an informant's identity under an abuse of discretion standard as follows:
Under 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:
(a) In all court cases, except as otherwise provided in Rule 230 (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....
Pa.R.Crim.P. 573(B)(2)(a)(i).
The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source. In order to overcome this qualified privilege and obtain disclosure of a confidential informant's identity, a defendant must first establish, pursuant
to Rule 573(B)(2)(a)(i), that the information sought is material to the preparation of the defense and that the request is reasonable. Only after the defendant shows that the identity of the 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.
In striking the proper balance, the court must consider the following principles:
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations[,] the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
[N]o fixed rule with respect to disclosure 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. Watson , 69 A.3d 605, 607-08 (2013) (internal quotation marks and some citations omitted).
Commonwealth v. Marsh , 606 Pa. 254, 260-261, 997 A.2d 318, 321-322 (2010).
Herein, Appellant contends the disclosure of the C.I.'s identity was required because he or she was the sole witness to the drug transaction on May 7, 2014, and, therefore, his or her identity is both material to Appellant's defense of fabrication and a reasonable discovery request. Brief for Appellant at 12, 15-18. Appellant further asserts the trial court essentially has allowed the Commonwealth to hamper his right to prepare and present a defense by making the strategic decision to dismiss count one to avoid the disclosure to the C.I.'s identity. Id. Finally, Appellant posits the Commonwealth failed to show a specific harm would likely befall the C.I. were his or her identify revealed; therefore, the trial court had no reason to protect the C.I.'s identity. Id. at 20-21.
Appellant also maintains the evidence was insufficient to support his conviction under 35 P.S. § 780-113, as it failed to establish he possessed narcotics with the intent to deliver them.
Our standard and scope of review of challenges to the sufficiency of evidence are well-settled:
In challenges to the sufficiency of the evidence, our standard of review is de novo, however, our scope of review is limited to considering the evidence of record, and all reasonable inferences arising therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner. Evidence is sufficient if it can support every element of the crime charged beyond a reasonable doubt. The evidence does not need to disprove every possibility of innocence, and doubts as to guilt, the credibility of witnesses, and the weight of the evidence are for the fact-finder to decide. We will not disturb the verdict "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.Commonwealth v. Forrey , 108 A.3d 895, 897 (Pa.Super. 2015) (internal citations and quotations omitted).
In the two paragraphs he devotes to developing this claim in his appellate brief, Appellant argues none of the police officers were able to testify as to observing any actual exchange between the C.I. and him and reiterates that the C.I. was not identified or called as a witness at trial. Brief for Appellant at 20-21. However, as the trial court explains, a review of the record reveals the totality of the officers' testimony amply supports a conclusion Appellant possessed cocaine and intended to deliver the same to the C.I. on May 7, 2014. Trial Court Opinion, filed 1/4/16, at 9-16.
Having determined, after careful review, that the Honorable Richard K. Renn, in his Rule 1925(a) Opinion filed on January 4, 2016, ably and comprehensively disposes of the Appellant's issues on appeal, with appropriate references to the record and relevant caselaw and without legal error, we affirm on the basis of that Opinion. Most importantly, the trial court carefully details its reasons for its pretrial ruling on Appellant's Motion to Compel Identity of Confidential Informant. Id. at 3-8. We direct the parties to attach a copy of this Opinion in the event of further proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/20/2016
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