J-S35031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
LAMONT ANTHONY CARROL,                     :
                                           :
                    Appellant              :            No. 382 EDA 2015

             Appeal from the Judgment of Sentence March 9, 2012
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0012280-2008

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MAY 11, 2016

        Lamont Anthony Carrol (“Carrol”) appeals from the judgment of

sentence imposed following his convictions of possession with intent to

deliver a controlled substance, possession of a controlled substance, and

criminal use of a communication facility.1 We affirm.

        The trial court aptly summarized the factual and procedural history of

this case, which we adopt for the purpose of this appeal.      See Trial Court

Opinion, 7/6/15, at 1-4.2

        Following a jury trial, Carrol was convicted of the above-mentioned

crimes.    On March 9, 2012, the trial court sentenced Carrol to 45 to 90

months in prison.



1
    35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 7512.
2
  Carrol entered a separate negotiated guilty plea for possession of a firearm
by a prohibited person. See Trial Court Opinion, 7/6/15, at 1 n.1. However,
the firearms charge is not at issue in this case.
J-S35031-16


      On appeal, Carrol raises the following questions for our review:

      I. Whether the verdict was contrary to law as to the charge of
      criminal use of a [communication] facility[?]

      II. Whether the verdict was contrary to law as to the charge of
      possession with intent to deliver[?]

      III. Whether the trial court abused its discretion in not allowing
      the identity of the confidential informant to be revealed[?]

Brief for Appellant at 8 (capitalization omitted).

      Carrol’s first two claims challenge the sufficiency of the evidence. We

apply the following standard of review when considering a challenge to the

sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial the
      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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).



                                   -2-
J-S35031-16


      In his first claim, Carrol argues that the evidence was insufficient to

sustain his conviction of criminal use of a communication facility. Brief for

Appellant at 15, 17.   Carrol concedes that the Commonwealth satisfied its

burden as to the first two elements, because he had used a cell phone in the

commission of the crimes and the underlying charge is a felony. Id. at 16.

Carrol asserts that his conversation with Officer Jeffrey Galazka (“Officer

Galazka”) does not constitute a substantial step toward the commission of

the underlying crime. Id.

      In its Opinion, the trial court addressed Carrol’s claim, set forth the

relevant law regarding criminal use of a communication facility, and

determined that the Commonwealth presented sufficient evidence to sustain

the conviction.   See Trial Court Opinion, 7/6/15, at 5-7.       We adopt the

sound reasoning of the trial court for the purpose of this appeal. See id.

      In his second claim, Carrol argues that the evidence was insufficient to

sustain his conviction of possession with intent to deliver. Brief for Appellant

at 17.   Carrol claims that his possession of a large number of individual

packets containing crack cocaine is not sufficient, without more, to show an

intent to deliver.   Id. at 18.    Carrol asserts that there was insufficient

evidence to prove an intent to deliver, even when considering other factors

in a totality of the circumstances analysis, such as the four jars found in his

house, a lack of other paraphernalia, the use of a confidential informant, and




                                  -3-
J-S35031-16


inconsistencies between Officer Galazka’s description and Carrol’s physical

appearance. Id. at 18-19.

      In its Opinion, the trial court addressed Carrol’s claim, set forth the

relevant law regarding possession with intent to deliver, and determined that

the Commonwealth presented sufficient evidence to sustain his conviction.

See Trial Court Opinion, 7/6/15, at 7-10.3 We adopt the sound reasoning of

the trial court for the purpose of this appeal.         See id.; see also

Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa. Super. 2010) (stating

that “intent to deliver may be inferred from an examination of the facts and

circumstances surrounding the case[,]” including the form and packaging of

the drug, and the behavior of the defendant); Commonwealth v. Morrow,

650 A.2d 907, 912 (Pa. Super. 1994) (stating that there was sufficient

evidence to sustain appellant’s conviction for possession with intent to

deliver where appellant sold marijuana to an informant, who subsequently

turned the marijuana over to the police).

      In his third claim, Carrol asserts that the trial court erred in denying

his Motion to compel disclosure of the identity of the confidential informant.

Brief for Appellant at 19.    Carrol argues that he should have had the

opportunity to examine and question the confidential informant because the


3
  With regard to Carrol’s claim regarding inconsistencies in Officer Galazka’s
description of Carrol, this claim goes to the weight of the evidence. The
fact-finder was free to weigh the evidence and make a credibility
determination, and we will not disturb the fact-finder’s judgment. See
Commonwealth v. Hanible, 836 A.2d 36, 40 (Pa. 2003).


                                 -4-
J-S35031-16


confidential informant was the only disinterested witness, and because the

confidential informant was an active participant in the transaction.        Id. at

21-22.

      “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. Washington, 63 A.3d 797, 801

(Pa. Super. 2013).       “The Commonwealth enjoys a qualified privilege to

withhold the identity of a confidential source.” Commonwealth v. Watson,

69 A.3d 605, 607 (Pa. Super. 2013). The trial court has the discretion to

require the Commonwealth to reveal the names of confidential informants

where a defendant makes a showing that “they are material to the

preparation   of   the   defense,   and   that   the   request   is   reasonable.”

Pa.R.Crim.P. 573(B)(2)(a).

      In its Opinion, the trial court addressed Carrol’s claim and determined

that Carrol did not demonstrate that the confidential informant’s identity was

material to the preparation of his defense. See Trial Court Opinion, 7/6/15,

at 11-12. We adopt the sound reasoning of the trial court for the purpose of

this appeal. See id.

      Judgment of sentence affirmed.




                                    -5-
J-S35031-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2016




                          -6-
                                                                                                                         S:35"0 3/-1 h
                                                                                                                 Circulated 04/22/2016 04:04 PM
                                                                                                                                  RECEIVED
\'

                                                                                                                                  JUL O 6 2015
                                     IN THE COURT OF COMMON PLEAS
                                    FOR THE COUNTY OF PHILADELPHIA                                                      APPEALS/POST TRIAL


     COMMONWEALTH OF PENNSYLVANIA                                                           TRIAL DIVISION

     v.                                                                                     CP-51-CR-OO12280-2008

     LAMONT CARROL, APPELLANT                                                               382 EDA 2015



                                                         OPINION


                 On January 19, 2012, the appellant (Lamont Carrol) was found guilty by a jury. The

     appellant was convicted of Possession with Intent to Deliver (PWID) (Fl), Criminal Use of a

     Communication Facility (F3), and Intentional Possession of a Controlled Substance (K+I) (Ml).

     On March 9, 2012, the court sentenced the.,...,, appellant to 45 to 90 months incarceration on his
                                                             ·-~~

     PWID conviction. The court imposed no further penalty on the appellant's Criminal Use of a

     Communication Facility conviction. The K+I charge merged with the appellant's PWID

     conviction for purposes of sentencing. The appellant was also ordered to pay a fine of $800.00.

                 On March 9, 2012, the appellant egtered into--i,##:.
                                                                  a.lJS$_.].egotiated guilty plea for Possession of a
                                                   -                       ~


     Firearm by a Prohibited Person and was sentenced to two (2) to four (4) years incarceration to

     run consecutively to the above captioned matter. 1 On June 8, 2012, the appellant filed a timely

     pro se Post Conviction Relief Act (PCRA) Petition. He later filed two Supplemental

      Memorandums of Law in support of the PCRA Petition on October 16, 2012 and May 9, 2013
                                                       ·-·         ~~.:',.:'.




      and an Amended PCRA Petition on November 12, 2013. On January 12, 2015, the court granted
                                                                                CP-51-CR-0012260-2008   Comm. v. Carrol. Lamont Anthony
                                                                                                        Opinion
      the PCRA relief and reinstated his appellate rights.

                                                                                      1111111111111111111111111
                                                                                                 7315972731
      I   The docket number for the Possession of a Firearm by a Prohibj1~PPerson conviction is (CP-51-CR-0002697-
      20 I I).                                                     -"""w··



                                                               1
          On January 21, 2015, the appellanrfiled         a Noticeof Appeal to the Superior Court. On

February 4, 2015, the Court ordered counsel to file a Statement of Matters Complained of on

Appeal pursuant to Pa. R.A.P. l 925(b). On March 17, 2015, the appellant filed his Statement and

                                              2
raised the following issues on appeal:

           1. The verdict was insufficient as'a matter of.law as to the charge of criminal use of a
              communication facility. There was no evidence that correlated the telephone call to
              any crime to be committed or to have been committed. There was no active conduct
              by the defendant. There was no evidence he acted intentionally, knowingly and
              recklessly.

           2. The verdict was insufficient as a matter of law as to the charge of possession with
              intent to deliver. There was nothing to connect the defendant to the controlled buy.
              There is no doubt that the defendant was .a .•user of drugs and that he had drugs when
              arrested on his person. The money taken from the defendant at the time of his arrest
              was not indicative of the defendant being a seller or [sic] drugs. Additionally, nothing
              was found in the house that would indicate defendant was a seller of drugs.
              Additionally, the weight of the drugs was suspect. Initially, it was 2.4 grams and then
              three months later it was 4.6 grams.

           3. The Court was in error in not allowing the identity of the confidential informant to be
              revealed.                               -~r~·


                                                       FACTS

           On August 5, 2008, Philadelphia police officers set up surveillance on the 3000 block of

Agate Street. N.T. 1/18/12, p. 36. Their main objective was to investigate the appellant, who was
                                                                __ .,.;.c:f!,!;'"'
                                                                 ~~r


 suspected of selling narcotics from a house located at 3093 Agate Street.3 N.T. 1/18/12, p. 38.

 The investigating officer (Jeffery Galazka) used a confidential informant (CI) to assist him in the

 investigation. Id. Galazka gave the CI $20 dollars in pre-recorded buy money and instructed the

 CI to purchase narcotics from the appellant. N.T. 1/18/12, p. 39. Galazka and several other



 2   Copied verbatim from the appellant's Statement of Matters Complained on Appeal pursuant to Pa.R.A.P. l 925(b ).

 3The Cl had been used between 50-100 times by Officer Galazka and is currently being used by the same officer in
 other investigations. N.T. l/18/12, p. 37.


                                                            2
officers stayed inside of their vehicle and observed t.2;J:I interact with the appellant. N.T.

1/18/12, p. 41. The CI had a brief conversation with the appellant and then handed him the pre-

recorded buy money. Id. The appellant walked into 3093 Agate Street, exited several minutes

later, and handed the CI small objects. Id. The CI returned to the police vehicle and gave Galazka

two orange-tinted Ziploc packets containing crack cocaiae. N.T. 1/18/12, p. 42. The police later
                                                                ~--?




tested and weighed the narcotics at headquarters, and the drugs were determined to be cocaine.

N.T. 1/18/12, p. 49, 129. The police then prepared a search warrant for 3093 Agate Street. N.T.

1/18/12, p. 49.

           On August 8, 2008, the police continued
                                             ~,.
                                                   their- .":.~~~").,.
                                                              investigation by setting up surveillance of

3093 Agate Street. N.T. 1/18/12, p. 52. On this day, Galazka observed an unidentified man and

woman walk on to the 3000 block of Agate Street. N.T. 1/18/12, p. 53. He then saw the appellant

exit 3093 Agate and approach the unidentified man and woman. Id. Both the man and woman

gave the appellant an unknown amount of money in exchange for small objects, but the police
                                                    "'"         ·~~'"'


did not stop or apprehend these individuals. Id.

           After observing this transaction, Galazka called a phone number that the CI had

 previously given to him, and he saw the appellant answer the phone. 4 N.T. 1/18/12, p. 38, 54.

 Galazka called the number because he believed   that the appellant was using his phone to
                                          ..,...       ~~~~·



 facilitate drug sales. Id. Galazka testified that following conversation occurred:

           I said, 'Yo Mont, it's Jeff. Can I get rock?' He [the appellant] said, 'Yeah,' and he
           gave me a brief description of what he was wearing, which I already knew, and
           then he said, 'Come onto the block.'

 N.T. 1/18/12, p. 55. Based on Galazka's observations
                                           ·. ,.       and conversation with the appellant,
                                                    ~~- ~ . =---


 Officer Johnson arrested the appellant. N.T. 1/18/12, p. 56. Johnson recovered from the



 4
     The officer called this cell phone number: 267-230-0827.
appellant's pants a clear plastic sandwich bag containing 42 orange-tinted Ziplock packets of

crack cocaine, $129 dollars, a small bag of marijuanaand a cell phone. N.T. 1/18/12, p. 57, 131.

According to Galazka, the retail value of the 42 packets of crack cocaine at $10 dollars a piece

was $420 dollars. N.T. 1/18/12, p. 60. The crack packets recovered from the appellant was

similar those that the CI purchased on August 5, 2012. Moreover, when Galazka called the

appellant's cell phone again (after his arrest), it rang:.J'rr-T. 1/18/12, p. 62.

        When the police later executed a warrant on 3093 Agate Street, they recovered four

empty jars from a closet in the living room. N.T. 1/18/12, p. 51-52, 62. Galazka testified that he

believed these jars were used to store marijuana and crack cocaine. Id. No drugs or money were

recovered from the house. N.T. 1/18/12, p,-90. A chemist weighed the two Ziploc packets of

crack cocaine purchased by the CI. N.T. 1/18/12, p. 129-130. These packets weighed 0.123 mg

each. Id. He also opined that the 42 packets of crack cocaine recovered from the appellant

weighed between 90 milligrams and 180 milligrams each. N.T. 1/18/12, p. 130. According to the

chemist, the total weight of the 46 packets-of crack c,2.s:aine was approximately 4.752 grams and

the total weight of the marijuana was 1.88 grams.5 N.T. 1/18/12, p. 131. Moreover, the appellant

 admitted that he "had crack cocaine in my [his] pocket" when he was arrested. N.T. 1/18/12, p.

 143, 148. The appellant also conceded that the 42 packets of crack cocaine (at $10 dollar each)

 had a total value of $420 dollars. N.T. 1/18/12, p. 148._,,...=
                                                               ~~·."




 5
  The reference to the 46 packets of crack cocaine includes the 42 recovered from the appellant and the two packets
 purchased by the Cl.


                                                          4
                                                             ·1J!..~~
                                                       ·~"




                                          DISCUSSION

   1. The verdict was sufficient as a matterof law as to the charge of CriminalUse of a
       Communication Facility.

       In reviewing a challenge to the sufficiency of the evidence, the appellate court "must

view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable

to ... the verdict winner." Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002)

(citing Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa. Super 2000)). The appellate court
                                                               __,~,-
                                                       ''":'i.f.-..?·"'

then determines whether the fact finder could have found that "every element of the offenses was

proven beyond a reasonable doubt." Id. It is not necessary for the established facts to be

"absolutely incompatible with the defendant's innocence." Id. (quoting Commonwealth v.

Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000)). Rather, the question as to whether there is any
                                                       ~~~··
doubt must be determined by the fact finder, unless the "evidence is so weak and inconclusive

that, as a matter oflaw, no probability of fact can be drawn from the combined circumstances."



        In this appeal, the appellant argues that there is insufficient evidence to charge him with

Criminal Use of a Communication Facility. This court disagrees. To support a conviction of

Criminal Use of a Communication Facility, the record must show that: (1) the defendant

knowingly and intentionally used a communication facility; (2) the defendant knowing,

 intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony either
                                                          ·~..;;.µt:!'"'·


 occurred or was attempted. Commonwealth v. Moss~ 852 A.2d 374, 382 (Pa. Super 2004).

 Facilitation has been defined as "any use of a communication facility that makes easier the

 commission of the underlying felony." United States v. Davis, 929 F.2d 554, 559 (10111

 Circ.1991 ). Moreover, the charge of Criminal Use of a Communication Facility also includes




                                                   5
                                                                                                               6
one's attempt to commit an underlying felony through his use of a communications facility.                         It is
                                                  -~7           -~?~ . .;.; ..;,.

also well settled that a conviction for this crime cannot stand without proof beyond a reasonable

doubt that the underlying felony did in fact occur. United States v. Iennaco, 893 F.2d 394, 396

(D.C.Circ.1990).

        In the case at bar, there is sufficient evidence in the record establishing the first element
                                                                       ... ~~-
of Criminal Use of a Communication Facility. The ~~Tdence established that the appellant

knowingly and intentionally used a communication facility (a cell phone) to discuss selling

narcotics. The evidence also showed that the appellant engaged in a drug-related telephone

conversation with Officer Galazka. N.T. 1/18/12, p. 38, 54. Galazka called the appellant,
                                                    ·-<--          ·-«!'tj[;I./f-~Vl'

watched the appellant answer his phone, and then asked the appellant if he could buy crack

cocaine. N.T. 1/18/12, p. 54-55. The appellant described what he was wearing and agreed to

meet Galazka on the 3000 block of Agate Street. Id.

         The evidence further established the second element of this offense. Criminal Use of a
                                                                     r~~;;,'f;;,ir-·
Communication Facility requires a person to knowingly, intentionally, or recklessly facilitate an

underlying felony. The second element was met because the appellant knowingly and

 intentionally used a cell phone to assist him in selling narcotics. Without question, the

 appellant's drug-related telephone conversation with Galazka facilitated his attempt to commit
                                                                               ~,.>.·



 the underlying felony of Possession with Intent to Dcli~~r (PWID).

         The third element of Criminal Use of a Communication Facility was also established. The

 third element requires that the underlying felony either occurred or was attempted. In this case,




 6
    The law of attempt states that attempt requires a substantial step toward the commission of the specific underlying
 crime. 18 Pa.C.S.A §901(a). The substantial step factor puts emphasis on "what the defendant has done" and not on
 •'the acts remaining to be done before the actual commission of the crime. Commonwealth v. Zingarelli, 839 A.2d
  l 064, I 069 (Pa.Super.2003).



                                                            6
each of the appellant's actions were substantial steps toward his attempt to commit PWID. For

one thing, the appellant discussed selling drugs to Galazka on the phone. N.T. 1/18/12, p. 55. We
                                                       ·,~1).,;il




also know that the appellant actually possessed and delivered drugs because Galazka had seen

him conduct two separate drug transactions earlier with the CI and two buyers. N.T. 1/18/12, p.

41, 53. Lastly, when the appellant was arrested, Officer Johnson recovered 42 orange-tinted

Ziplock packets of crack cocaine, $129 dollars, a small.bag
                                                    ·-c,,;;>'
                                                              of marijuana, and a cell phone from

his pants. N.T. 1/18/12, p. 57, 131. With all of this evidence, the jury could infer that the

appellant committed the crime of Criminal Use of a Communication Facility.


    2. The verdictwas sufficient as a matterof law as to the charge of Possession With
       Intentto Deliver

        The appellant next argues that there was insufficient evidence to convict him of PWID.

This court disagrees. In order to establish PWID, the Commonwealth must prove beyond a

reasonable doubt that the defendant possessed a controlled substance with the intent to deliver

the same. Conaway, 791 A.2d 359, 362 (2002).

         The Commonwealth can establish possession of a controlled substance through either

 actual possession or constructive possession. Commonwealth v. Macolino, 469 A.2d 132, 134

 (Pa. 1983). Actual possession is proven "by showing ... [that the] controlled substance [was]

 found on the [defendant's] person." Id. If the contraband. were not found on the defendant, the
                                                          c:~'~'




 Commonwealth may satisfy its evidentiary burden by proving that the defendant constructively

 possessed the drug. Id. Constructive possession is defined as one's ability to exercise a conscious

 dominion over the controlled substance, coupled with his intent to exercise that control.


                                                            ~.-~
 Commonwealth v. Chenet, 373 A.2d 1107_, 1108 (Pa ... Super. 1977). It is well settled that the

 Commonwealth may use circumstantial evidence to demonstrate a defendant's constructive




                                                   7
possession of a controlled substance. Maco lino, 469 A.2d at 13 5-136 ( citing Commonwealth v.

Bentley, 419 A.2d 85, 87 (Pa. Super. 1980)).

        The Commonwealth can also establish intentto deliver by direct evidence or it can be
                                                                    -~~,;,,,;p,·




inferred from the totality of the circumstances. Conaway, 791 A.2d at 362-363. Some of the

factors courts have considered when determining intent to deliver are the method of packaging,

the form of the drug, and the behavior of the defendant. Id.

        In the case at bar, the Commonwealth presented sufficient evidence to sustain the
                                                 ,c.,,-              ····~~.:'f.<M~!'.",



appellant's PWID conviction. The Commonwealth established the first element of PWID (actual

possession) by showing that the appellant had 42 packets of crack cocaine in his pocket. N.T.

1/18/12, p. 57, 59. Furthermore, the appellant himself testified that he purchased the 42 packets

for a total of $420 dollars. N.T. 1/18/12, p. 148. The appellant's admission, along with the drugs
                                                  ·-·                  ,~;:~··olb,";f.',.•




the police seized from him, is sufficient to establish the first element of PWID.7

        The Commonwealth also established the second element of the PWID through the

testimony of Officer Galazka. Galazka testified that he used a CI to assist him in his

 investigation of the appellant. N.T. 1/18/12, p. 38. He observed the appellant conduct two
                                                     . .....-           -,.~{,iii;,:..~-=,


 separate drug transactions. N.T. 1/18/12, p. 41, 53. During the first transaction, the CI

 approached the appellant, and they briefly conversed. N.T. 1/18/12, p. 41.The CI then gave

 prerecorded buy money to the appellant who, in tum, gave the CI two orange-tinted Ziploc

 packets of crack cocaine. Id.

         During the second transaction, Galazka observed an unidentified man and woman walk

 on to the 3000 block of Agate Street. N.T. 1/18/12, p. 53. Shortly thereafter, the appellant exited




                                                                                      ·¢"'"
 7
  Although the appellant does not contest his K+I conviction, it tthuld be noted that the Commonwealth   also
 presented sufficient evidence to sustain the K +I conviction.


                                                                8
                                                              .
                                                          ,,.~~-
                                                                   _,...._,,   ..




3093 Agate and approached the unidentified man and woman. Id. At that point, they both handed

the appellant an unknown amount of money in exchange for small objects.

         After Galazka observed these transactions, he,.used a phone to call the cell phone number

the CI had previously given to him. N.T. 1/18/12, p. 38, 54. Galazka testified that the phone

numberbelonged to the appellant and that he saw the appellant answer the phone and

respond to his inquiryaboutpurchasingcrackcocaine. N.T. 1/18/12, p. 38. According to

Galazka, he and the appellant had the following conversation:

          'Yo Mont, it's Jeff. Can I get rock?' He [the appellant] said 'Yeah,' and he gave
         me a brief description of what he was wearing, which I already knew, and then he
         said, 'Come onto the block.'

Id. This conversation confirmed that the appellant was using the phone to facilitate his narcotics

sales.

         In addition, when the appellant was later arrested, Officer Johnson recovered 42 orange-

tinted Ziplock packets of crack cocaine, $129 dollars, a small bag of marijuana, and a cell phone

from the appellant's pants. N.T. 1/18/12, p. 57, 131. During trial, the appellant testified that he

did not intend to sell the crack cocaine, but rather the-drugs were for personal use. N.T. 1/18/12,

p. 148. However, the jury apparently did not find the appellant's testimony in this regard to be

 credible. Moreover, the evidence suggests that the appellant intended to sell the 42 packets of

 crack cocaine he was carrying in his pants pocket. The crack the appellant possessed

 corroborated his intent to sell. Although the appellant-testified that he was going to mix the crack

 cocaine and the marijuana together to put into a "blunt" to smoke, the police never recovered any

 "blunts" or other drug paraphernalia from the appellant. N.T. 1/18/12, p. 147-151. Just as

 importantly, when the police executed their search warrant on 3093 Agate Street, they recovered

 four empty jars from a closet in the living room. N.T•.,c.: -171'8/12, p. 62. Galazka testified that he




                                                      9
believed these jars were used to store marijuana and crack cocaine. Id. Based on the totality of

the evidence, the Commonwealth established that the appellant possessed drugs with the intent to

deliver.

           The appellant also claims that "theweight of              ~1-1~...drugs was
                                                               "l-,8,V
                                                                                         suspect." He contends that

"initially [the weight of the drugs] was 2.4 grams and then three months later it was 4.6 grams."

This court is unsure how the appellant now calculates 4.6 grams when both attorneys stipulated

duringthe trial that the total weight of the cocaine was 4.752 grams. N.T. 1/18/12, p. 128-

131. This stipulation was binding on bothparties as w~U..as the court, as "facts effectiveiy
                                                               'W$~


stipulated are controlling and conclusive." Tyson v. Commonwealth, 684 A.2d 246, 251 n.11

(Pa.Cmwlth.1996).       It is also clear that "a stipulation is a declaration that the fact agreed upon is

proven[, and a] valid stipulation must be enforced according to its terms." Commonwealth v.

Rizzuto, 777 A.2d 1069, 1088 (2001 ). The appellate courts have held that "where the stipulation
                                                 ~"f."-         ..   n-&.#~·


 [is] clear and unambiguous on its face, we are prohibited from examining evidence, as to the

 intent of the parties, which is not within the four comers of the stipulation." Cobbs v. Allied

 Chemical Corp., 661 A.2d 1375, 1378 n.5 (1995). Therefore, the parties' stipulation also helped

 to establish PWID beyond a reasonable doubt. Com..,..,.,,.
                                                      v. Fennell, 105 A.3d 13, 20 (Pa. Super.

 2014).

            In our case, the court instructed the jury that the weight of the cocaine was agreed upon

 by both attorneys. The court instructed:

            "when the Assistant District Attorney and counsel for the defense stipulate, that
            is, when they agree that a certain fact is true;'tl{~i~ stipulation is evidence of that
            fact and, you should regard the stipulated or agreed fact as proven."

 N.T. 1/18/12, p. 28. The court further instructed the jury that the parties stipulated that the total

 weight of the cocaine was 4.752 grams. N.T. 1/18/12, p. 130. As the weight of the crack cocaine




                                                          10
was not in dispute, the appellant cannot now claim that he was treated unfairly when he himself

stipulated to the weight of the drugs.

   3. The court did not err by not revealing the identity of the confidential informant.

                                            -e-.         ~.;.:w-"'··
        The appellant's final contention is that the court erred by not revealing the identity of the

confidential informant (CI). This court disagrees. Before Cl's identity may be revealed, the

defendant must establish that the information sought is material to the preparation of the defense

and that the request is reasonable. Commonwealth v. Roebuck, 681 A.2d 1279, 1283 (Pa. 1996),

Commonwealth v. Bing, 713 A.2d 56, 58 (1998).        "Oii!y after a showing   [t]hat the information

sought is material and the request reasonable is the trial court called upon to exercise its

discretion to determine whether the information is to be revealed" Id. In deciding whether the

CI' s identity should be disclosed, the court considers such factors as the crime charged, the

possible defenses, and the significance of;he informer·-;,testimony. Id. at 58. However, the

Pennsylvania Supreme Court has also recognized the importance of the Commonwealth's

privilege of non-disclosure "in order to preserve the public's interest in effective law

 enforcement." Id., Commonwealth v. Carter, 233 A.2d 284, 287, Commonwealth v. Herron, 380

 A.2d 1228, 1229 (1977).

        In the current case, there were numerous reasons why the court did not reveal the

 identification of the CL First, the CI' s identity was not material to the preparation of his defense.

 When asked, the appellant could not demonstrate how the court's revealing the Cl's identity
                                                             ;£¢_.,il,l..
                                                                      ...-,


 would help prove he was not selling narcotics. Secona, the Commonwealth established that

 Officer Galazka independently observed the appellant sell narcotics to the CI on August 5, 2008.

 N.T. 1/18/12, p. 41. Third, Galazka gave the CI $20 dollars in pre-recorded buy money before

 observing the CI give the money to the appellant. Id. Fourth, the CI immediately gave Galazka



                                                    11
two orange-tinted Ziploc packets containing crack cocaine after the Cl's transaction with the

appellant. N.T. 1/18/12, p. 42, 129. Fifth, on August 8, 2008, Galazka later saw a man and

woman exchange money for small objects with the appellant. N.T. 1/18/12, p. 53. Sixth, the

appellant agreed to meet Galazka during their cell P!l.9ne conversation. N.T. 1/18/12, p. 55. For

all of these reasons, it was not necessary to reveal the Cl's identity.8

           Even if these reasons were not enough, the Commonwealth had a qualified non-

disclosure privilege. This privilege was established to preserve the public's interest in effective

law enforcement. Bing, 713 A.2d at 58, Carter, 233 _!.\2d at 287, Herron, 380 A.2d at 1229. In
                                                   ·~
our case, Galazka testified that the CI had been used between 50- 100 times and that the CI was

currently being used in other investigations. N.T. 1/18/12, p. 37. Consequently, revealing the

Cl's identity would have put the Cl's safety at risk as well as compromise future investigations.

N.T. 1/18/12, p. 37. Moreover, the appellant did not-ecae-
                                                      provide the court with an exception

justifying why the Commonwealth's privilege should be breached. This was yet another reason

 why the court did not disclose the Cl's identity.




 8
     All of the police collaboration in this case rendered the Cl's identity and testimony less significant.



                                                               12
                                       CONCLUSION"

       For the aforementioned reasons, this court respectfully submits that the appellant's

claims should be denied.

                                                                             By the Court,




                                           ·,;,;...




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