J-A16016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RAEMAR POWELL

                            Appellant                  No. 656 WDA 2016


          Appeal from the Judgment of Sentence Entered April 7, 2016
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0004937-2015


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                      FILED: SEPTEMBER 28, 2017

        Appellant Raemar Powell appeals from the April 7, 2016 judgment of

sentence entered in the Court of Common Pleas of Allegheny County (“trial

court”), following his bench convictions for two counts of possession with

intent to deliver heroin (“PWID”) (35 P.S. § 780-113(a)(30)), possession of

a controlled substance (heroin) (35 P.S. § 780-113(a)(16)), possession of

drug paraphernalia (35 P.S. § 780-113(a)(32)), and criminal use of

communication facility (18 Pa.C.S.A. § 7512). Upon review, we affirm.

        Following an undercover narcotics operation by the District Attorney’s

Narcotics Enforcement Team (“DANET”), Appellant was charged with the

above-mentioned crimes.          On July 22, 2015, Appellant filed a “Motion to

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Disclose Identity of Confidential Informant,” seeking the identity of the

confidential informant (“CI”) because of inconsistencies between the

information contained in the criminal complaint and the testimony presented

at his preliminary hearing.   Specifically, Appellant claimed that, while the

“[c]riminal [c]omplaint makes no mention of a [CI] being involved [in the

undercover operation,]” “the detective stated [at the preliminary hearing]

that the CI was involved and did the ‘hand to hand deal’ himself with

[Appellant].” Appellant’s Motion to Disclose, 7/22/15, at ¶¶ 2-3 (sic). Thus,

Appellant claimed that the information adduced at the preliminary hearing

was “contrary to what was stated in the [c]riminal [c]omplaint.” Id. at ¶ 3.

      On November 12, 2015, the trial court held a hearing on Appellant’s

disclosure motion.    At the hearing, the Commonwealth presented the

testimony of Detective Robert Grondwalski, a fifteen-year veteran of the

Hampton Township Police Department.

      Detective Grondwalski testified that, on February 10, 2014, he was

working in an undercover capacity as a narcotics investigator when he

engaged in a narcotics transaction with Appellant.   Id. at 9. According to

Detective Grondwalski, the officers who initiated the undercover operation

showed him a photograph of Appellant prior to the narcotics transaction. Id.

at 9-10.    As a result of having seen Appellant’s “mugshot,” Detective

Grondwalski was able to identify Appellant at the time of the transaction.

Id. at 9.




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      Describing the events that precipitated the February 10, 2014 incident,

Detective Grondwalski testified that, in his presence, the CI called Appellant

to set up a drug transaction. Id. at 11. Detective Grondwalski stated that

the CI and Appellant arranged for the transaction to take place at “the

Burger King Restaurant on Route 8 in Shaler.”          Id. at 11.    Detective

Grondwalski also testified that, to complete the narcotics transaction, he

drove himself and the CI to Burger King restaurant in his undercover vehicle.

Id.    According to Detective Grondwalski, other officers had set up

surveillance of the location. Id.

      He testified that he and the CI arrived at Burger King first and waited

slightly over an hour for Appellant to arrive.      Id. at 12-13.    Detective

Grondwalski further testified that Appellant pulled up in a Silver Audi and

parked it “within a car length” from Detective Grondwalski’s vehicle. Id. at

13. A female was seated in the front passenger seat next to Appellant. Id.

Detective Grondwalski further testified that he exited his vehicle and that the

CI remained seated inside the undercover vehicle, where he remained

throughout the narcotics transaction at issue. Id. Detailing his encounter

with Appellant, Detective Grondwalski testified:

            [Appellant] was the operator of the vehicle. There was an
      unknown female seated in the front passenger seat. I conducted
      the transaction with [Appellant] through the front passenger
      window in which case the female did not touch any drugs or any
      money and didn’t say anything about the transaction.          I
      conducted it directly with [Appellant].




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Id.   Detective Grondwalski stated that he recognized Appellant from the

photograph that was shown to him prior to the narcotics transaction. Id. at

14.

       On cross-examination, Appellant confronted Detective Grondwalski

with the alleged inconsistences between the information contained in the

criminal complaint and Detective Grondwalski’s testimony at the preliminary

hearing1 regarding the involvement of the CI.              Detective Grondwalski

testified that he did not issue the criminal complaint and rejected Appellant’s

claim that Detective Grondwalski had agreed at the preliminary hearing to

reveal the identity of the CI at trial.        Id. at 15-18.   Moreover, Detective

Grondwalski rejected Appellant’s claim that, at the preliminary hearing,

Detective Grondwalski had testified that it was the CI—not he—who engaged

in the hand-to-hand drug transaction with Appellant. Id. at 16-17 (“I said

[the CI] arranged [the narcotics transaction]. [The CI] never took part in

it.”). Detective Grondwalski explained that, prior to the transaction at issue,

the CI had confirmed the identity of Appellant.            Specifically, Detective

Grondwalski explained:

             Typically what happens is somebody wants to cooperate
       with the police. They say they can buy controlled substances
       from an individual. They may know this individual. They may
       know this individual by a legal name. They may not know them
       by a legal name. They may know him by a street name and
       they give a description. They may have a number.
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1 As a court reporter was not present, the preliminary hearing was not
transcribed. See N.T. Hearing, 11/12/15, at 17-18.



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              The officers do a background investigation. We try to
      figure out the legal identity of this person. If we obtain the legal
      identity of this person, we would show some form of mugshot,
      JNET photo, something, to the informant. “Is this the person
      you know sells drugs?”
            They would confirm the identity of that person. We would
      conduct a transaction with this person sometimes using a body
      wire, sometimes using an undercover police officer.
             At the conclusion of this transaction, if we know the
      identity of the suspect, the legal name, and it is confirmed by
      the confidential informant and by the undercover police officer,
      we allow them to leave with the money for safety purposes and
      to protect the confidentiality of the informant.
            If we do not know the identity of this person, we would not
      allow this to take place. We would be giving our money away to
      an unknown person. We would not able to make an arrest[.]

Id. at 20-22.

      In response, Appellant presented the testimony of his mother, Lashonn

Perry, to impeach the credibility of Detective Grondwalski.          Ms. Perry

testified that, contrary to Detective Grondwalski’s testimony, he did testify

at the preliminary hearing that the CI “made a hand-to-hand buy with”

Appellant and that the Commonwealth would reveal the identity of the CI at

trial. Id. at 27.

      At the close of the hearing, in support of Appellant’s disclosure motion,

his counsel argued that there was “definitely a contradiction as to how the

identity [of Appellant] was made and to whom it was made. I think those

are matters that can be cleared up.” Id. at 31. Essentially, counsel urged

the trial court not to find Detective Grondwalski’s testimony credible, absent

corroboration of the circumstances underlying the narcotics transaction by

the CI. Id. at 33.



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      On January 14, 2016, on the day of—but prior to the commencement

of—Appellant’s non-jury trial, the trial court denied Appellant’s motion to

seek disclosure of the CI’s identity. In so doing, the trial court found:

             [Detective] Grondwalski, a Hampton police officer with 15
      years experience and also a member of the DANET team and
      District Attorney’s Narcotics Enforcement Team, is part of the
      investigation here that began on February—early February,
      February 7, 2014, targeting eventually [Appellant] and the
      investigation including the use of [the CI] and [the CI] being
      used to contact [Appellant] to arrange a buy that took place on
      February 10, 2014.

             The [CI] was used to call [Appellant] in the presence of the
      police officers, DANET team and a meeting was arranged on
      Route 8 in Shaler Township at the Burger King restaurant. The
      CI accompanied [Detective] Grondwalski to the pre-arranged
      site, in fact that vehicle with Grondwalski and the CI arrived
      prior to [Appellant’s] arriving. [Appellant] arrived in a separate
      vehicle with a female companion in the front seat, [Appellant]
      being the driver of that vehicle.
            [Detective Grondwalski] left his vehicle and conducted—
      allegedly conducted a transaction between himself and
      [Appellant] and the vehicles left the area and the drugs were
      secured. Those drugs were secured and [Appellant] eventually
      arrested in that regard.
       ....
            There’s a dispute on two fronts from my perception; one is
      the usual strict legal analysis of the production of the CI for
      purposes of trial, in the interest of preparing and presenting
      [Appellant’s] defense.    There is a second issue as to the
      production of the CI pursuant to a representation [Appellant’s
      counsel] states was made by [Detective Grondwalski] at the
      preliminary hearing.
           The court finds in this instance that the CI was the—
      remained in the vehicle when the transaction occurred.
      [The CI] is a potential witness to events surrounding the
      actual exchange but apparently not a witness to the
      actual exchange of money and drugs as that took place at
      the window of the vehicle with [Appellant] and
      [Detective] Grondwalski.
            In any event the court finds also that [Appellant] has
      available to him in terms of the exact specifics of the transaction
      the female person who has not yet been identified. But even if
      the court were to reach—make that determination of materiality

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       the court finds as stated at the time of the preliminary hearing
       the Commonwealth has an interest in protecting the CI’s identity
       and safety in today’s world of violence surrounding the drug
       trade.   Consequently, the court is denying the motion for
       production under that analysis.
              Now, as to the alleged promise that was made to produce
       the CI for purposes of trial by [Detective Grondwalski] or officers
       at the preliminary hearing, the court finds that in that instance
       that the officers have no authority to promise production of any
       witness at that point in time. At a preliminary hearing, the
       district attorney’s office assumes control of the prosecution
       consistent with the rules of criminal procedure and it’s their
       prosecution not the police prosecution. Consequently, even if
       such a promise was made the court is not finding such. It is
       without legal effect. It’s the DA who has the authority to do so
       and if in fact that occurred has not been established.
       Consequently the motion to produce on both fronts is denied.

N.T. Trial, 1/14/16, at 3-6 (sic) (emphasis added).

       At the January 14, 2016 non-jury trial, Appellant did not renew his

motion for disclosure of the CI’s identity or proffer any additional or new

evidence in support of such motion. Following the trial, the trial court found

Appellant guilty of two counts of PWID, possession of a controlled substance

(heroin),    possession      of   drug    paraphernalia,    and   criminal   use   of

communication facility. On April 7, 2016, the trial court sentenced Appellant

to an aggregate term of three years’ probation. 2 Appellant did not file any

post-sentence motions. Appellant, however, timely appealed to this Court.

       The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal.             Appellant complied, asserting, among

other things, that the trial court abused its discretion in denying his pretrial

____________________________________________


2 At count one (PWID), concurrently with his sentence of probation, the trial
court also sentenced Appellant to 12 months of intermediate punishment.



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motion for disclosure of the CI’s identity. In response, the trial court issued

a Pa.R.A.P. 1925(a) opinion, concluding in part that Appellant’s claim was

without merit.

      On appeal, Appellant repeats the same issue for our review:

      [I.] Whether the trial court erred and/or abused its discretion in
      failing to order the Commonwealth to produce the name of the
      [CI]?

Appellant’s Brief at 6.

      “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.” Commonwealth v. Watson, 69 A.3d 605, 607 (Pa.

Super. 2013) (citation omitted). Similar to other pretrial motions, such as

suppression, when an appellant challenges a pretrial motion for disclosure of

a CI’s identity, our scope of review is limited to the relevant pretrial hearing

transcripts.   See In the Interest of L.J., 79 A.3d 1073, 1088-89 (Pa.

2013) (noting that our scope of review is limited to the evidence presented

at the pretrial hearing).    Moreover, “it is inappropriate to consider trial

evidence as a matter of course, because it is simply not part of the [pretrial]

record, absent a finding that such evidence was unavailable during the

[pretrial] hearing”.” Id. at 1085.

      Rule of Criminal Procedure 573 provides that 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:

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     (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

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            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. Marsh, 997 A.2d 318, 321-22 (Pa. 2010) (internal

citations omitted) (alteration in original).

      “Where the confidential informant is not a witness to the incident at

issue, the defendant must show that the Commonwealth’s disclosure of the

identity of the informant is (1) material to his defense; (2) reasonable; and

(3) in the interests of justice.”   Commonwealth v. King, 932 A.2d 948,

952 (Pa. Super. 2007).

            Regarding the element of materiality, the defendant must
      show as a threshold matter that the informant’s identity is
      germane to the defense. Evidence is relevant and material to
      the defense if it tends to show that a specific crime of which a
      defendant stands accused was committed by someone else. The
      record must disclose a reasonable possibility that the information
      sought will materially aid the defendant in presenting his
      defense and is not obtainable from another source.

Id. at 953 (quotation marks and citations omitted) (emphasis in original).

Thus, “[b]efore an informant’s identity may be revealed, the 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) (citation and emphasis omitted).         Furthermore, “the safety of the

confidential informant is a controlling factor in determining whether to reveal

his identity.” Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1998).

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      Instantly, on appeal, Appellant argues that the trial court abused its

discretion in denying his disclosure motion because (1) the incident in

question involved “a single drug transaction by a person that the police did

not buy drugs from before or after;” (2) “[t]he police witnesses did not know

Appellant;” (3) “the criminal complaint was filed over nine (9) months later;”

and (4) “the Commonwealth presented no independent evidence which

demonstrated a connection between Appellant and the vehicle and/or the

telephone” used to set up the narcotics transaction. Appellant’s Brief at 12,

21-22.      At the core, Appellant essentially raises a misidentification

argument.

      The foregoing argument, however, is in stark contrast to the argument

made in the trial court or contained in the motion for disclosure of the CI’s

identity.    Specifically, in the trial court, Appellant claimed that the

inconsistencies between the information contained in the criminal complaint

and Detective Grondwalski’s testimony required the disclosure of the CI’s

identity. In other words, Appellant sought the disclosure of the CI’s identity

to   contradict   Detective   Grondwalski’s   version   of   how   the   narcotics

transaction occurred and who was involved in the hand-to-hand buy.

      Based on our review of the record, as detailed above, we conclude that

Appellant is not entitled to relief. Here, as the Commonwealth aptly notes,

“Appellant made no showing of mistaken identity at the pre-trial hearing and

made no offering as to exactly how the CI’s testimony would be helpful to

his defense.”     Commonwealth’s Brief at 15.     Appellant made only a bald

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allegation that the disclosure of the CI’s identity would entitle him to a fair

trial without specifying how the disclosure of the CI’s identity was material to

his defense, reasonable and in the interests of justice.        Indeed, at the

hearing on his disclosure motion, Appellant did not argue that he was not

present in the vehicle at the time of the narcotics transaction. Appellant also

did not argue that the CI would possess exculpatory evidence that would aid

Appellant in establishing his innocence or otherwise was necessary for the

preparation of his defense. Thus, under the circumstances of this case, we

cannot conclude that the trial court abused its discretion in denying

Appellant’s disclosure motion because he failed to make a showing of

materiality.3 Accordingly, Appellant’s claim on appeal fails.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2017




____________________________________________


3 Because Appellant is unable to show materiality, we need not determine
whether his request for disclosure of the CI’s identity is reasonable or in the
interests of justice.  See Pa.R.Crim.P. 573(B)(2)(a)(i); Marsh, surpa,
Hritz, supra.



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