J-S63039-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                 Appellee               :
                                        :
          v.                            :
                                        :
DWAYNE MOORE,                           :
                                        :
                 Appellant              :    No. 2988 EDA 2018

    Appeal from the Judgment of Sentence Entered September 18, 2018
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002719-2017

BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 17, 2020

      Dwayne Moore (Appellant) appeals from the September 18, 2018

judgment of sentence of five years of probation following his nonjury

convictions for possession with intent to deliver (PWID) and criminal use of a

communication facility. Specifically, Appellant challenges the orders denying

his motion to suppress and motion to disclose the identity of the confidential

informant (CI). Upon review, we affirm.

      By way of background, in January 2017, Philadelphia police initiated a

drug-dealing investigation after the CI notified officers that “Wiz,” later

identified as Appellant, was dealing heroin and marijuana at 6026 North

Warnock Street.1 N.T., 7/9/2018, at 9-17, 27-28.



1  The CI informed police that Joe Williams lived at this residence; Appellant
lived across the street at 6033 North Warnock Street. N.T., 3/13/2018, at
(Footnote Continued Next Page)


* Retired Senior Judge assigned to the Superior Court.
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      As part of the investigation, Officer Greg Stevens set up three

controlled buys – January 9, January 10, and January 19 – for the CI to

purchase marijuana and heroin from Appellant.                Prior to each buy, the CI

dialed the same phone number to set up the deal.2

      On January 9, 2017, the CI called the designated phone number to set

up a controlled buy of marijuana and was directed to 6026 North Warnock

Street by the individual who answered the phone. The CI was searched and

provided prerecorded buy money before proceeding to 6026 North Warnock

Street, along with a surveillance team. The CI knocked on the door of the

residence and was let inside. Within a few minutes, Appellant arrived and

walked inside without knocking.                  A few minutes after that, the CI and

Appellant exited together and entered a vehicle.              The vehicle drove a half

block and stopped. Special Agent Coleman, who was stationed nearby in a

van, observed a hand-to-hand transaction between Appellant and the CI in

that vehicle.   The CI then returned to Officer Stevens with the marijuana.

N.T., 3/13/2018, at 37-41.

      On January 10, 2017, officers set up surveillance outside 6026 North

Warnock Street and Officer Stevens searched the CI in anticipation of a
                       _______________________
(Footnote Continued)
36-37; N.T., 7/9/2018, at 27-28.      Based on this information, police
presented a photograph of Appellant to the CI, who identified Appellant as
Wiz. N.T., 3/13/2018, at 76-77.
2
  This telephone number was connected to a cell phone that was confiscated
from Appellant’s person following his arrest on February 6, 2017. N.T.,
7/9/2018, at 19-20.

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second controlled buy.   Once surveillance was in place, the CI called the

designated number to purchase the same amount of marijuana. The CI was

again directed to 6026 North Warnock Street. Shortly after the call ended,

Appellant arrived at 6026 North Warnock Street and let himself inside using

a key. Minutes later, the CI approached, knocked, and was let inside. After

approximately five minutes, the CI left the residence and returned to Officer

Stevens with the marijuana. Id. at 49-50, 53.

      On January 19, 2017, Officer Stevens had the CI set up a controlled

buy for heroin.   Again, the CI was searched and given prerecorded buy

money.   The CI called the same phone number and was directed to 6026

North Warnock Street. The CI went to the residence, knocked, and was let

inside. Shortly thereafter, Appellant exited the residence, entered a vehicle,

and drove away.    Appellant returned approximately ten minutes later and

reentered 6026 North Warnock Street. Two minutes later, the CI returned

to Officer Stevens with the heroin. Id. at 54-55.

      On February 6, 2017,3 Officer Stevens set up surveillance outside 6026

and 6033 North Warnock Street. This time, the CI called the same phone

number to set up a purchase of 12 bundles of heroin. The CI was directed

to Fern Rock train station. Once the CI was in place at the station, the CI



3 Officer Stevens did not set up a controlled buy after January 19, 2017,
because the CI informed him that Williams was in the hospital and that
Appellant would therefore not be selling drugs from 6026 North Warnock
Street. N.T., 3/13/2018, at 59.

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called the same phone number again. Two minutes later, Appellant exited

6026 North Warnock Street and entered the front passenger seat of a

vehicle.   Two minutes after that, the vehicle arrived at Fern Rock train

station. The driver of the vehicle backed into the corner of the station’s lot

and parked. Appellant exited the vehicle and looked around the parking lot

while holding a cell phone to his ear. At the same time, the CI’s phone rang,

displaying the number the CI had called every time to set up a deal with

Appellant. Appellant reentered the vehicle, and officers approached to arrest

Appellant. Id. at 60-61; N.T., 7/9/2018, at 22-23, 50, 69.

      Officer Yearges parked his unmarked vehicle in front of Appellant’s

vehicle.   Officer Yearges then turned on his police lights and exited his

vehicle. Appellant immediately fled. Officer Yearges gave chase, displaying

his police badge on his belt and yelling “police” while directing Appellant to

stop. Appellant continued to flee, throwing a plastic bag onto the railroad

tracks as he ran.     Officer Yearges was eventually able to trip Appellant,

causing both Appellant and Officer Yearges to fall onto the pavement and

end the foot chase.        Appellant continued to struggle, swinging his elbows

and jamming his right hand into his pocket. Officer Yearges was finally able

to subdue Appellant after punching him in the kidney area twice.                Once

Appellant was handcuffed, Officer Yearges recovered a knife from Appellant’s

pocket,    along   with,    inter   alia,   Suboxone   strips,   money,   and    the

aforementioned cell phone.          N.T., 7/9/2018, at 23-24, 69-72.        Officer


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Stevens retrieved the plastic bag from the railroad tracks that Appellant had

thrown; it contained 12 bundles of heroin. Id. at 24.

      Appellant was arrested and charged with multiple drug-related

offenses stemming from both the January narcotics investigation and the

events of February 6, 2017. Prior to trial, Appellant filed a motion to

suppress and motion to disclose the identity of the CI. See Omnibus Pre-

Trial Motion, 5/8/2017; Motion for Disclosure of CI, 1/12/2018. On March

13, 2018, the trial court held a hearing on the CI motion. Officer Stevens

and defense expert David Leff testified.    Appellant argued that disclosure

was material to his defenses of misidentification and fabrication. On March

28, 2018, the trial court denied Appellant’s motion because of the availability

of other witnesses, and other means of proving fabrication.         See N.T.,

3/28/2018, at 3-5.

      As to Appellant’s suppression motion, the trial court incorporated the

testimony from the March 13, 2018 hearing and heard argument from

counsel. Id. at 5-27. Appellant argued that (1) the items recovered from

his person should be excluded because the officers lacked reasonable

suspicion to stop or probable cause to arrest; and (2) the bag of heroin

should be excluded because he was forced to abandon it. Id. at 6, 8.

      On April 6, 2018, the trial court denied Appellant’s motion to suppress.

The trial court found that the officers “had the requisite probable cause to

arrest [Appellant] on February 6th from the cumulative effect of their multi-


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day surveillance[,]” and therefore there was no forced abandonment of the

heroin. N.T., 4/6/2018, at 8.      The trial court emphasized that Appellant’s

arrest was not the result of “an anonymous flash, but the product of a long

and involved surveillance[.]” Id.

        On July 9, 2018, Appellant proceeded to a nonjury trial, where the

aforementioned facts were developed.        The trial court found Appellant not

guilty of the offenses related to the January 2017 controlled buys, and guilty

of PWID and criminal use of a communication facility as to the events of

February 6, 2017.       On September 18, 2018, the trial court sentenced

Appellant to concurrent five-year terms of probation. Appellant did not file

post-sentence motions.

        This timely-filed notice of appeal followed.4    On appeal, Appellant

presents two issues for this Court’s consideration. We begin with Appellant’s

claim that the trial court erred in denying his motion to suppress.

        [An appellate court’s] standard of review in addressing a
        challenge to the denial of a suppression motion is limited to
        determining whether the suppression court’s factual findings are
        supported by the record and whether the legal conclusions
        drawn from those facts are correct. Because the Commonwealth
        prevailed before the suppression court, we may consider only
        the evidence of the Commonwealth and so much of the evidence
        for the defense as remains uncontradicted when read in the
        context of the record as a whole. Where the suppression court’s
        factual findings are supported by the record, [the appellate court
        is] bound by [those] findings and may reverse only if the court’s
        legal conclusions are erroneous. Where ... the appeal of the
        determination of the suppression court turns on allegations of

4   Both Appellant and the trial court complied with Pa.R.A.P. 1925.

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      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the courts below are subject to []
      plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017),

quoting Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super.

2015) (citation omitted).

      On appeal, Appellant claims that the trial court’s denial of his motion

to suppress the heroin5 and items recovered from his person was in error

where the police did not establish probable cause to seize Appellant.

Specifically, Appellant claims that the information used by the officers was

“stale and uncorroborated information given by an informant of unproven

reliability and credibility[.]” Appellant’s Brief at 3, 12.

      This Court has defined probable cause as follows.

      Probable cause is made out when the facts and circumstances
      which are within the knowledge of the officer at the time of the
      [seizure], and of which he has reasonably trustworthy
      information, are sufficient to warrant a man of reasonable
      caution in the belief that the suspect has committed or is
      committing a crime. The question we ask is not whether the
      officer’s belief was correct or more likely true than false. Rather,
      we require only a probability, and not a prima facie showing, of
      criminal activity. In determining whether probable cause exists,
      we apply a totality of the circumstances test.




5 If the police did not have probable cause to seize Appellant, then the
heroin would be considered forcibly abandoned and be subject to
suppression under Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996).

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Commonwealth v. Bozeman, 205 A.3d 1264, 1277 (Pa. Super. 2019)

(citations omitted; emphasis in original).

      At the hearing on Appellant’s suppression motion, the parties

incorporated the testimony from the CI motion.          At that hearing, Officer

Stevens testified regarding the overarching narcotics investigation, as

detailed supra, which began when the CI notified police that “Wiz” was

selling marijuana and heroin from a specific phone number out of 6026

North Warnock Street.     N.T., 3/13/2018, at 36.      Throughout the ensuing

investigation, the police solely used this CI to set up controlled buys and

communicate with Wiz.      Id. at 33-34.      Officer Stevens testified that the

investigation corroborated every part of the CI’s tip: the type of drugs being

sold, the address out of which they were being sold, and the number utilized

to reach Wiz. Prior to the first buy, the CI identified Appellant as Wiz. On

January 9, 10, 19, and February 6, Officer Stevens and his surveillance team

observed Appellant as detailed supra. Id. at 76-77, 89.

      This specific CI had worked with Officer Stevens on numerous

occasions and always proved reliable.        Id. at 74-75.   According to Officer

Stevens, this CI was still in use and had “provided probably thousands of

arrests for the city and federal government.” Id. at 75. Officer Stevens also

testified regarding his extensive narcotics experience.          Specifically, he

participated in numerous narcotics trainings during his 24 years as a military

police officer with the United States Marines Corps, was part of the Cambria


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County and Somerset County Drug Task Force as a police officer in

Johnstown, had been a narcotics officer with the Philadelphia police since

2007, and currently worked as part of the FBI Violent Gang and Drug Task

Force.   Officer Stevens recounted that he had received both state and

federal narcotics training, explaining that he “had just about all the training

there is for a narcotics officer in Philadelphia.” Id. at 73-74.

      Finally, Appellant called Leff as an expert in packaging, usage, and

methodology of distribution of narcotics.      Id. at 96.    Leff testified that,

based on his experience, on both January 9 and January 10, the CI paid

$100 for $40 worth of marijuana; on January 19, the CI paid $80 for $140

worth of heroin; and on February 6, the CI was to pay $850 for $840 worth

of heroin. Id. at 97-101. Thus, he contended the CI paid too much on the

first two controlled buys, paid too little on the third controlled buy, and was

set to pay the correct street value on the final, largest buy. According to

Appellant, this demonstrated the unreliability of the CI and supported his

claim of fabrication by Officer Stevens.

      In denying Appellant’s suppression motion, the trial court concluded

that the police had probable cause to seize Appellant.

      The police officers already had independent probable cause to
      arrest Appellant at the time they approached him, as a result of
      a long and involved police surveillance, including Appellant’s
      phone ringing while the CI and Appellant telephoned each other
      to effectuate the final buy at the transportation center. Even if
      the [] flight was provoked, the officers at this point had more
      than enough probable cause to seize Appellant before he


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      discarded the evidence onto the train tracks, abandoning the
      evidence.

Trial Court Opinion, 3/29/2019, at 11.

      Based upon our review of the record, we agree with the trial court that

Officer Yearges had probable cause to arrest Appellant and pursue him when

he fled in light of Officer Stevens’s testimony regarding the overall narcotics

investigation. Contrary to Appellant’s assertion, the trial court’s conclusion

was not based only on information received from the CI, but on the direct

observations of Officer Stevens and his surveillance team. Accordingly, the

trial court did not err in denying Appellant’s suppression motion.

      We now turn to Appellant’s second issue: whether the trial court erred

in denying Appellant’s motion to disclose the CI’s identity “where Appellant

showed the information sought was material to the defense and the

discovery request was reasonable, and where the Commonwealth failed to

demonstrate any specific reason for non-disclosure[.]” Appellant’s Brief at

3. We consider this mindful of the following.

      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. Indeed, where the informant
      was an eyewitness to the transaction in question, the role of the
      trial judge’s discretion is established by rule of court.

Commonwealth v. Withrow, 932 A.2d 138, 140 (Pa. Super. 2007)

(citations omitted). This rule provides, in pertinent part, as follows.

      (a) In all court cases, except as otherwise provided in Rules 230
      (Disclosure of Testimony Before Investigating Grand Jury) and
      556.10 (Secrecy; Disclosure), if the defendant files a motion for

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     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) (emphasis added).

     This Court has adopted the guidelines articulated by the United
     States Supreme Court in Roviaro v. United States, 353 U.S.
     53[] (1957), to guide trial courts in the exercise of their
     discretion in cases where, as here, the defendant requests the
     identity of a confidential informant who is also an eyewitness:

           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 the
           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, [353 U.S.] at 60-62[]).

     In Carter, this Court held that the balance tips in favor of
     disclosure where guilt is found solely on police testimony based
     on a single observation, where testimony from a more
     disinterested source, such as the informant, is available.
     However, where other corroboration of the officer’s testimony
     exists, disclosure of the informant’s identity is not necessarily
     required. This Court also recognized the importance of the
     Commonwealth’s       qualified   privilege  to    maintain   the
     confidentiality of an informant in order to preserve the public’s
     interest in effective law enforcement. Also, the safety of the
     confidential informant is a controlling factor in determining
     whether to reveal his identity.


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     Further, before an informant’s identity may be revealed, the
     defendant must establish pursuant to Pa.R.Crim.P. 305(B) that
     the information sought is material to the preparation of the
     defense and that the request is reasonable. Only after a
     showing by the defendant that 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.

Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1998) (some citations

omitted).

     Although the defendant need not predict exactly what the
     informant will say, he must demonstrate at least a reasonable
     possibility the informant’s testimony would exonerate him. 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.

Withrow, 932 A.2d at 141 (citations and quotation marks omitted).

     At the hearing on the CI motion, Officer Stevens and Leff testified as

detailed, supra.       Appellant argued that disclosure of the CI’s identity was

material    to   his    defense   of   misidentification   and   police   fabrication.

Specifically, Appellant argued that Officer Stevens was fabricating the drug

deals because Appellant was innocent, Officer Stevens’s testimony contained

inconsistencies and details beyond what was included in police reports, and

Officer Stevens could not provide the names of every officer on his

surveillance team.        As such, Appellant argued that the CI was the only

person who could say who sold the CI the drugs in January.                      N.T.,

3/13/2018, at 109-116, 127.




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      In denying Appellant’s motion, the trial court concluded that Appellant

failed to meet the threshold burden that disclosure of the CI’s identity was

material. Specifically the court found as follows.

      Two officers[6] testified to what they observed, which were the
      result of a long and protracted surveillance by numerous officers
      taking place over several days, with a hand[-]to[-]hand
      transaction between [] Appellant and the CI observed by an
      additional officer, Special Agent Coleman, utilization of the same
      phone number to conduct the various transactions, with the cell
      phone recovered from [] Appellant with that phone number, the
      last and largest transaction involving Appellant appearing at the
      pre-determined meeting place to effectuate the sale of the
      narcotics, Appellant and the CI telephoning each other within
      earshot of the police at the pre-determined meeting place,
      Appellant then running from the police and throwing the package
      of narcotics that he was going to sell to the CI over onto the
      train tracks—all of which provided independent corroboration.

            The only testimony Appellant presented on his behalf was
      that of expert Leff regarding the alleged improper pricing of
      narcotics, calling into question the CI’s reliability. However,
      where, as here, multiple police officers observed and testified
      regarding several transactions, the disclosure of the CI was
      unwarranted.

Trial Court Opinion, 3/29/2019, at 8-9.

      As detailed supra, Officer Stevens testified to his own narcotics

experience, as well as the reliability of the CI. As with Appellant’s motion to

suppress,   Appellant   mistakenly   conflates   Officer   Stevens’s   first-hand

observations with information provided solely by the CI.        Notably, Officer

6 We note that only one officer, Officer Stevens, testified at the hearing on
Appellant’s CI motion. It appears the trial court may be confusing the March
13, 2018 hearing with the testimony offered at Appellant’s nonjury trial,
wherein Officer Stevens, Officer Yearges, and Sergeant Andrew Callahan
testified. However, this mistake does not impact our analysis.

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Stevens never testified as to who the CI claimed sold him the drugs in

January. In fact, Officer Stevens did not testify to any information provided

by the CI beyond the initial tip and Williams’s hospital stay. Rather, Officer

Stevens   testified   that   the   investigation   corroborated   the   information

provided within that initial tip, and then only provided his own first-hand

observations of Appellant’s presence and involvement on January 9, 10, 19,

and February 6.       Appellant failed to demonstrate a reasonable possibility

that the CI’s testimony was material because other officers also observed

the controlled buys from the street and the final confrontation at Fern Rock

train station.7   Accordingly, the trial court did not abuse its discretion in

finding that Appellant had failed to meet his threshold burden.

      Judgment of sentence affirmed.




7  Insofar as Appellant challenges Officer Stevens’s credibility, such a
challenge goes to the weight of the evidence. Appellant failed to raise this
distinct claim on appeal, and it is therefore not before this Court. Insofar as
Appellant is challenging the weaknesses in the Commonwealth’s case as to
the January controlled buys, the trial court, while finding Officer Stevens’s
observations sufficient to provide probable cause to arrest, did not find that
the Commonwealth had proven the January controlled buys beyond a
reasonable doubt. See N.T., 7/24/2018, at 2 (finding Appellant not guilty of
the January controlled buys because of reasonable doubt about the CI and
the amounts). As such, whether the CI’s testimony would have been
material to the January controlled buys is moot.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/20




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