J-S64004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    PETIE P. DAVIS                             :
                                               :   No. 1971 MDA 2016
                       Appellant

            Appeal from the Judgment of Sentence November 4, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002199-2016


BEFORE:      PANELLA, J., SHOGAN, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                            FILED DECEMBER 14, 2017

        Appellant, Petie P. Davis,1 appeals from the judgment of sentence

entered following a jury trial in the Dauphin County Court of Common Pleas.

Appellant challenges the trial court’s denial of his pre-trial motions as well as

evidentiary rulings made during trial. We affirm.

        On January 7, 2016, Officer Nicolas Licata contacted a Confidential

Informant (“CI”) to utilize in a controlled buy operation. Officer Licata

instructed the CI to call a drug dealer and order a “brick” 2 of heroin. Once the

telephone call was placed, Officer Licata marked $200 in Dauphin County drug
____________________________________________


   Former justice specially assigned to the Superior Court.

1Trial transcripts suggest Appellant’s actual name is Audry Petie Davis. See
N.T., Trial, 11/3/16, at 3. For the sake of consistency, we utilize the name
presented in the caption of the notice of appeal.

2   Officer Licata testified a “brick” amounts to 50 bags of heroin.
J-S64004-17



funds and gave it to the CI. Officer Licata searched the CI and his vehicle for

contraband, and, finding nothing, proceeded to follow the CI in an unmarked

police vehicle to a location where a black male stood outside.

        Officer Licata, and a second officer, Officer Dennis Simmons, observed

the black male enter the CI’s vehicle and emerge from the vehicle a short time

later. The CI proceeded to a predetermined location where Officer Licata

performed another search. Officer Licata did not find the pre-marked buy

money on the CI but did find a brick of heroin. Simultaneously, the police

arrested the male, later identified as Appellant.

        During a search of Appellant, police found the pre-marked drug fund

money as well as a cell phone matching the number dialed by the CI in the

presence of Officer Licata. Upon recovering the pre-marked bills, Officer Licata

returned them to the drug fund to use in further investigations.

        Appellant was charged with delivery of a controlled substance and

criminal use of a communication facility.3 During pre-trial proceedings,

Appellant moved to dismiss his case due to the police’s failure to preserve the

marked money used in the transaction and to reveal the identity of the CI. At

the hearing on the motions, Appellant failed to present any evidence.

However, the Commonwealth presented the testimony of Officer Licata who

described the danger involved in revealing the CI’s identity. The trial court

denied both motions.

____________________________________________


3   35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.

                                           -2-
J-S64004-17



       Appellant’s case proceeded to a jury trial. Prior to the commencement

of trial, Appellant argued the trial court should exclude any testimony related

to the recovery of the pre-marked buy money as a violation of the best

evidence    rule.   The    trial   court   denied   the   motion   and   allowed   the

Commonwealth’s witnesses to testify about their use and recovery of the pre-

marked buy money. Appellant did not present any evidence but cross-

examined all of the Commonwealth’s witnesses. During the testimony of one

of the Commonwealth’s witnesses, Appellant attempted to question the

witness about the credibility of a supervisor. The Commonwealth objected to

this line of questioning, and this objection was seemingly sustained by the

trial court.4 Following deliberations, the jury convicted Appellant of both

charges. This appeal follows.

       Prior to addressing Appellant’s issues on the merits, we must determine

if Appellant has properly preserved his issues for review. In his final issue on

appeal, Appellant contends that the trial court erred in granting the

Commonwealth’s objection to Appellant’s line of questioning regarding a

witness’s supervisor. See Appellant’s Brief, at 9-10, 36-38. To preserve a

claim of error following a trial court’s decision to exclude evidence, our Rules

of Evidence provide that a party offering the evidence must inform the court

of its substance through an offer of proof. See Pa.R.E. 103(a)(2). Additionally,

it is an Appellant’s duty to ensure that the certified record contains the
____________________________________________


4The trial court failed to place its ruling on the record. See N.T., Trial, 11/3/16
at 53-54.

                                           -3-
J-S64004-17



information necessary to allow a complete assessment of the issues raised.

See, e.g., Fiore v. Oakwood Plaza Shopping Ctr., 585 A.2d 1012, 1019

(Pa. Super. 1991).

      Here, following the Commonwealth’s objection to Appellant’s question,

all parties convened at the court’s sidebar. None of the conversation

concerning the nature of the objection, or even the trial court’s ultimate ruling

on the objection, was placed on the official record. While we can presume the

objection was sustained based upon Appellant’s cessation of his line of

questioning, we have no information of record to confirm that Appellant

preserved this issue for our review. Additionally, despite Appellant’s

contention, there is no information of record to support his claim that the trial

court sustained the Commonwealth’s objection without sufficient support.

Without this information, which was Appellant’s duty to provide, we cannot

review this claim.

      Moving to Appellant’s first preserved issue, Appellant challenges the trial

court’s denial of his motion to dismiss. See Appellant’s Brief, at 9, 19-26.

Specifically, Appellant contends the “currency used in this case is material in

proving a delivery occurred and [the Commonwealth’s] intentional failure to

preserve said funds [is] a violation of Appellant’s due process rights.” Id., at

19. The Commonwealth, on the other hand, argues it did not act in bad faith

in failing to preserve the buy money because the money itself was not material

and it was not feasible for the police to retain the money. See

Commonwealth’s Brief, at 8-12.

                                      -4-
J-S64004-17



      “The decision to grant a pretrial motion to dismiss a criminal charge is

vested in the sound discretion of the trial court and may be overturned only

upon a showing of abuse of discretion or error of law.” Commonwealth v.

Totaro, 106 A.3d 120, 123 (Pa. Super. 2014) (citations omitted). Specifically,

in relation to the Commonwealth’s duty to preserve evidence for trial, our

Supreme Court has explained that, pursuant to Brady v. Maryland, 373 U.S.

83 (1963),

      suppression by the prosecution of evidence favorable to an
      accused upon request violates due process where the evidence is
      material to either guilt or to punishment, irrespective of the good
      faith or bad faith of the prosecution. This Court has held that to
      prove a Brady violation, the defendant has the burden of
      demonstrating that: (1) the prosecution has suppressed evidence;
      (2) the evidence, whether exculpatory or impeaching, is helpful to
      the defendant, and (3) the suppression prejudiced the defendant.
      Prejudice is demonstrated where the evidence suppressed is
      material to guilt or innocence. Further, favorable evidence is
      material, and constitutional error results from its suppression by
      the government, if three is a reasonable probability that, had the
      evidence been disclosed to the defense, the result of the
      proceeding would have been different. A reasonable probability is
      a probability sufficient to undermine confidence in the outcome.

Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (internal quotation

marks and citations omitted).

      Appellant has failed to meet his burden of demonstrating a Brady

violation where evidence is material to either guilt or punishment. While

Appellant’s petition contains numerous allegations concerning the materiality

of the pre-marked buy money, Appellant failed to present any evidence at the

hearing to demonstrate that the production to the buy money would be helpful



                                     -5-
J-S64004-17



to his case. Further, Appellant failed to show how the lack of this evidence

would prejudice him. The trial court did not prevent Appellant from

questioning the officers’ testimony relating to the drug money and it was the

duty of the jury to judge the credibility of the testimony related to the buy

money.

      Alternatively, assuming the buy money was potentially useful rather

than materially exculpable evidence, Appellant argues that his due process

rights were violated due to the Commonwealth’s bad faith destruction of the

buy money. See Appellant’s Brief, at 23-26. When the Commonwealth fails to

preserve potentially useful evidence, the defendant must prove that the

Commonwealth acted in bad faith in order to show a due process violation.

See Commonwealth v. Chamberlin, 30 A.3d 381, 399 (Pa. 2011) (citation

omitted). Bad faith exists where evidence is destroyed under circumstances

“in which the police themselves by their conduct indicate that the evidence

could form a basis for exonerating the defendant.” Arizona v. Youngblood,

488 U.S. 51, 58 (1988).

      Once again, Appellant has failed to meet his burden. Appellant offers no

evidence Officer Licata acted in bad faith in re-circulating the buy money.

Officer Licata testified that the policy of the department was to re-circulate

buy money so as not to hold up drug funds in litigation. Appellant did not

present any evidence to challenge this policy. Thus, as Appellant is unable to

show that the Commonwealth’s failure to preserve the buy money violated his

constitutional rights, we find this issue meritless.

                                      -6-
J-S64004-17



      Next, Appellant asserts the trial court erred by allowing to keep the

identity of the CI confidential despite the CI’s status as the sole eyewitness to

the controlled buy. See Appellant’s Brief, at 26-32. “Our standard of review

of claims that a trial court erred in its disposition of an informant’s identity is

confined to abuse of discretion.” Commonwealth v. Watson, 69 A.3d 605,

607 (Pa. Super. 2013) (citation omitted).

      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.

Id., at 607-608 (citations omitted).

      Appellant averred the CI’s materiality as the sole eyewitness to the

controlled buy. However, at the pre-trial hearing on his motion, Appellant

offered no evidence in support of this claim, or any other claim related to the

materiality of the CI’s identity to the defense. The only testimony presented

at the pre-trial hearing was that of the Commonwealth’s witness, Officer

Licata, concerning the safety risks to revealing the identity of the CI.

Appellant’s unsupported allegations, without more, cannot meet Appellant’s

burden. Thus, Appellant’s second issue on appeal fails.




                                       -7-
J-S64004-17



      Finally, Appellant asserts the trial court violated the “best evidence rule”

by denying his motion in limine to exclude reference to the buy money during

trial. See Appellant’s Brief, at 9, 33-35. Because the trial court permitted the

Commonwealth to testify concerning the uniquely marked buy money at trial,

despite their failure to produce the actual money, Appellant contends the best

evidence rule was violated. See id.

      “Generally, a trial court’s decision to grant or deny a motion in limine is

subject   to   an    evidentiary    abuse   of       discretion   standard   of    review.”

Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (en banc)

(citations omitted). The success of Appellant’s argument hinges upon the

application of the best evidence rule. Under this rule, “[a]n original writing,

recording, or photograph is required in order to prove its content unless these

rules, other rules prescribed by the Supreme Court, or a statute provides

otherwise.” Pa.R.E. 1002. “Courts apply the best-evidence rule when the

contents of documentary evidence are at issue – that is, if the terms of the

writing   must      be   proven    to   make     a    case   or   provide    a    defense.”

Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa. Super. 2017) (citation

omitted).

      Despite Appellant’s contention, the application of the rule is inapposite

here. Our analysis of the rule in a similar case is illustrative. In

Commonwealth v. Harris, 719 A.2d 1049 (Pa. Super. 1998), a panel of this

court explained that the “best evidence” rule did not apply where




                                          -8-
J-S64004-17


      [t]he material issues in this case were whether [the defendant]
      knowingly possessed and delivered a controlled substance. The
      Commonwealth clearly made out its case with the testimony of
      the undercover officer who identified appellant as the individual
      who sold him the substance identified as cocaine. The testimony
      about the twenty dollar bill, specifically, the serial number, was
      mere cumulative evidence, corroborating a crime which had
      already been established. In these circumstances, where the
      “contents of the documentary evidence” (i.e. the writing on the
      bill) were not at issue, the best evidence rule does not apply, and
      the trial court did not abuse its discretion in admitting the
      photocopy of the marked twenty dollar bill[] or the oral testimony.

Id., at 1052 (internal citations omitted).

      Applying the rationale used by the panel in Harris, we find the trial

court did not abuse its discretion in denying Appellant’s motion in limine. As

there, the issue here was whether Appellant knowingly possessed and

delivered a controlled substance. The Commonwealth proved its case with the

testimony of Officer Licata and Officer Simmons regarding their observation

of the transaction, Officer Licata’s recovery of the brick of heroin from the CI,

and the discovery of the cell phone with the same number Officer Licata

witnessed the CI dial. Officer Licata’s testimony regarding the mark placed on

the buy money was not required to prove Appellant’s guilt, and thus, the

contents of the buy money were not required to be produced at trial.

Appellant’s final issue on appeal fails.

      Judgment of sentence affirmed.




                                      -9-
J-S64004-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2017




                          - 10 -
