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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA


                        v.

MARQUISE BELL

                             Appellant                           No. 2722 EDA 2016


              Appeal from the Judgment of Sentence January 11, 2016
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0003088-2014



BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                 FILED DECEMBER 12, 2017

        Marquise Bell appeals from the judgment of sentence of six to twenty-

three months incarceration followed by a consecutive four year period of

probation imposed for his convictions of possession with intent to deliver

(“PWID”), conspiracy to PWID, and possession of a controlled substance.

Appellant was convicted for his role in facilitating drug purchases in

Philadelphia from September 21, 2013, through October 9, 2013. The sole

issue    on    appeal    challenges      the   trial   court’s    refusal   to   order   the

Commonwealth to disclose the names of confidential informants used in

those two transactions. We affirm.




* Retired Senior Judge specially assigned to the Superior Court.
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       Philadelphia Police Officer Joseph McCook testified that he conducted

ongoing surveillance of narcotics sales occurring in the 1800 and 1900

blocks of East Thayer Street.           On September 21, 2013, Officer McCook

utilized confidential informants (hereinafter collectively referred to as “CI”s)

to buy drugs from that area.           In Officer McCook’s presence, the first CI

placed a phone call and arranged a deal. The officer released the CI and,

from a distance of approximately fifty feet, observed the following.

Appellant exited 1856 East Thayer Street, where he met the CI and accepted

pre-recorded buy money. Appellant then walked away, entered the home at

1928 East Thayer Street, and returned with items that he handed to the CI.1

The CI returned to Officer McCook and handed over the items, which were

twenty-five vials of crack cocaine capped with purple lids.

       On October 4, 2013, Officer McCook utilized a different CI to arrange

another transaction.      Appellant and a male with a bicycle were outside of

1856 East Thayer Street. Officer McCook observed Appellant hand money to

the man on the bike, who then rode to 1928 East Thayer and retrieved items

from inside. The bicyclist then handed items to Appellant, who secreted the

objects in a nearby wall.        As with the September 21st transaction, Officer

____________________________________________


1 The 1928 East Thayer Street home was approximately 200 feet from
Officer McCook’s vantage point. He testified that he did not lose sight of
Appellant except for the period that he entered the home.




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McCook observed the CI from a distance of approximately fifty feet. The CI

approached Appellant and gave him money, whereupon Appellant retrieved

objects from the wall. Appellant gave the CI these items, later determined

to be four vials of crack cocaine capped with purple lids, which were

ultimately turned over to Officer McCook.2 Appellant was seen engaging in

several other similar transactions with numerous unidentified buyers. Both

of these sales occurred in the afternoon.

        Based on these and other transactions, Officer McCook prepared a

search warrant for 1928 and 1856 East Thayer Street.3 On October 9, 2013,

Officer McCook conducted pre-raid surveillance and observed Appellant and

other persons standing outside 1856 East Thayer. During this surveillance,

he observed a vehicle arrive and park in front of 1928 East Thayer.      The

passenger went inside the property, while the driver exited and spoke to

Appellant. The driver handed Appellant something from a container, and the

driver then entered the 1928 residence. While other persons entered 1928

East Thayer Street on that day, Appellant was not among them.



____________________________________________


2   Appellant stipulated to the property receipt and laboratory tests.

3 Officer McCook also testified that he used CIs on two other transactions
that occurred on September 25, 2013, and October 8, 2013, which followed
a similar pattern but did not involve Appellant.




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       At some point, police officers raided the area and searched the

residences.    As part of the raid, Appellant, who was accompanied by two

females, was arrested a short distance from the homes.         He did not have

any controlled substances nor any pre-recorded buy money. A search of the

vehicle outside the 1928 residence yielded 149 clear vials of crack cocaine

topped with purple lids.

       Appellant sought disclosure of the identities of the CIs used on

September 21 and October 4. He asserted a mistaken identity defense, and

averred that he was merely walking in the area when the raid occurred. The

trial court denied the motion. Appellant proceeded to a bench trial, where

he was found guilty of all charges. Appellant received the aforementioned

sentence, and appealed to this Court.4           He presents one issue for our

review:

       Did not the lower court err and abuse its discretion in denying
       appellant's motion to compel disclosure of the identity of
       confidential informants who were eyewitnesses to two alleged
       drug sales by appellant, where appellant met his burden that the
       information sought was material to the defense and the request
       was reasonable, and where the Commonwealth failed to
       demonstrate any exceptional or compelling reason for
       nondisclosure that outweighed appellant's right to prepare a
       defense?

Appellant’s brief at 3.

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4 Appellant did not file an appeal. He filed a timely PCRA petition seeking
reinstatement of his appellate rights, which was granted.



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     The sole issue on appeal challenges the trial court’s denial of the

motion seeking the identities of the two CIs used by Officer McCook on

September 21, 2013, and October 4, 2013. He noted his expectation that

the CIs would corroborate his mistaken identity defense. “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).

     Pennsylvania Rule of Criminal Procedure 573(B) provides, in pertinent

part, that the trial court has discretion to require the Commonwealth to

provide the names of confidential informants “upon 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)(i).    Therefore, the defendant

seeking disclosure must first establish the materiality and reasonableness of

the request.

     Our law has recognized that there is a “qualified privilege to preserve

the informant's confidentiality in order to protect the flow of information

from informants and thereby maintain the public's interest in effective

law enforcement.” Commonwealth v. Roebuck, 681 A.2d 1279, 1282–83

(Pa. 1996) (footnote omitted).     Thus, once the defendant satisfies the

materiality and reasonableness components, the trial court must determine

whether the Commonwealth is required to disclose the information in light of

the privilege. “Only after a showing by the defendant that the information

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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) (citation

omitted).

     The precise showing demanded of the defendant is difficult to quantify,

as the point of obtaining the identity is to determine what the witness

knows. Thus, by necessity we must examine the circumstances of the case,

and the precedents in this matter apply a reasonableness standard.       See

Commonwealth v. Herron, 380 A.2d 1228, 1231 (Pa. 1977) (“[A]t a

minimum Herron . . . should have informed the court in an offer of proof of

facts . . . which would have suggested the possibility that disclosure of the

informer’s identity might indeed have been relevant and helpful[.]);

Commonwealth v. Payne, 656 A.2d 77, 81 (Pa. 1994) (Castille, C.J.,

concurring) (a defendant “must demonstrate that there is a reasonable

likelihood that the witness will exonerate the defendant and that the

evidence is not obtainable from another source.”); Commonwealth v.

Belenky,    777   A.2d   483,   488   (Pa.Super.   2001)   (defendant   “must

demonstrate a reasonable possibility the informant could give evidence that

would exonerate him”). See also Commonwealth v. Novasak, 606 A.2d

477, 483 (Pa.Super. 1992) (for discretionary discovery requests in general,

the “proper focus of our analysis must concern whether appellant provided




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the court of common pleas with enough factual data to justify granting the

discovery request.”).

       Additionally, when the discretion to disclose is implicated, there can be

no fixed rule regarding whether disclosure must occur. Commonwealth v.

Marsh, 997 A2d 318, 322 (Pa. 2010).              “Rather, the determination must

depend     on    the   particular circumstances    of   each   case,   taking   into

consideration the crime charged, the possible defenses, the possible

significance of the informant's testimony, and other relevant factors.” Id. at

322–23.     When the defendant has established a foundation for disclosure,

the trial court must then determine whether disclosure is warranted by

applying the guiding principles first set forth by the United States Supreme

Court in Roviaro v. United States, 353 U.S. 53 (1957).5



____________________________________________


5  Roviaro is not binding as it was decided on evidentiary principles;
however, we have adopted its standards due to the underlying constitutional
issues. See Commonwealth v. Carter, 233 A.2d 285, 286, n.4 (Pa. 1967)
(noting that the principles announced “ha[ve] a federal constitutional
resonance”). The United States Supreme Court has likewise observed that

       [w]hile Roviaro was not decided on the basis of constitutional
       claims, its subsequent affirmation in McCray v. Illinois, 386
       U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), where both due
       process and confrontation claims were considered by the Court,
       suggests that Roviaro would not have been decided differently if
       those claims had actually been called to the Court's attention.

United States v. Valenzuela-Bernal, 458 U.S. 858, 870 (1982).



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      The trial court heard argument on both the initial burden and the

balancing test, and the Pa.R.A.P. Rule 1925(a) opinion on the matter

discusses both. The Commonwealth maintains that affirmance is warranted

on the ground that Appellant failed to meet his initial burden. “[Appellant]

failed to demonstrate that informants possessed any non-incriminating

information, much less material evidence[.]” Commonwealth’s brief at 11

(emphasis in original). The Commonwealth states that Appellant presented

only speculation, which “is insufficient to make the threshold showing that is

required . . . for a judge to balance the competing factors[.]” Id. at 14. We

agree.

      In its Pa.R.A.P. 1925(a) opinion, the trial court determined that

Appellant failed to establish materiality for the reasons         outlined in

Commonwealth v. Watson, 69 A.3d 605, 608 (Pa.Super. 2013), which

held that a defendant failed to make the threshold showing.        Therein, a

police officer used a CI to purchase drugs from a particular residence. From

approximately thirty feet away, the officer watched the CI approach Watson

and hand over money. Watson then went inside the home and returned with

vials of crack cocaine, which the CI returned to the officer. Based upon this

observation, the officer prepared a search warrant for the home, which was

executed two days later. When the officers arrived, they observed Watson

exit the home and discard, underneath a parked vehicle, objects which were

retrieved and proven to be crack cocaine.    Watson was then charged with

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offenses pertaining to both dates, and unsuccessfully sought disclosure of

the CI’s identity. On appeal, we determined that Watson failed to meet his

burden, emphasizing the observations made on the day of arrest:

      Most problematic with [Watson]'s misidentification argument is
      that officers executing the warrant observed him throw multiple
      vials of crack cocaine under a parked vehicle in an obvious
      attempt to avoid arrest. With the basis of his misidentification
      defense thus completely undermined, Appellant could not
      reasonably prevail upon the court that disclosure of the CI was
      somehow material to a defense already proved incredible.

Id. at 608–09.    Watson thus determined that the mistaken identification

defense with respect to the prior delivery to the CI was “completely

undermined” due to observations made on the day of his arrest.

      In response, Appellant analogizes the circumstances of his arrest to

those in Commonwealth v. Payne, 656 A.2d 77 (Pa. 1994). Therein, a CI

informed an undercover Pennsylvania State Police trooper that Payne was

willing to sell drugs.      A transaction was arranged, with the trooper

participating in the buy:

      The trooper and the informant followed [Payne] on foot between
      two buildings where the trooper in the informant's presence paid
      [Payne] for 7.4 grams of cocaine. The so-called informant was
      now clearly a witness to the crime as well. This transaction took
      place on May 11, 1990, but [Payne] was not arrested until
      December 10 of that year. Neither the officer nor any other
      police had any contact with [Payne] in the interim, although the
      officer said he saw [Payne] in the area on several later
      occasions.




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Id. at 78. Our Supreme Court concluded that the CI’s identity was material

to Payne’s mistaken identity defense, in part because the CI was the only

other witness to the transaction:

       [Payne] testified at the evidentiary hearing that he had not met
       the trooper prior to this arrest and that he had not been at the
       apartment complex where the transaction occurred on the night
       in question. What is that if not “evidence that suggests he was
       not at the scene?” . . . . Where the defense is one of
       mistaken identity, the defendant can do no more than
       deny his involvement and suggest that another
       eyewitness might offer evidence that would support his
       claim. Here, that suggestion is bolstered by the fact that the
       arrest was not made until seven months after the incident, which
       was the only direct contact the officer had with the buyer. Surely
       this lapse of time allows for the possibility that the officer's
       memory of the transaction was mistaken.

Id. at 80 (emphasis added). Since Payne observed that a defendant “can

do no more than deny his involvement” in a mistaken identity case,

Appellant argues that this principle likewise applies to him, thus triggering

the   balancing     inquiry.   The    Commonwealth   counters   that   Payne   is

distinguishable as that case involved a singular drug transaction, whereas

this case presents several deals; moreover, the arrest in Payne was made

seven months after the transaction.6



____________________________________________


6 As indicated by Payne, the question of whether the balance tips in favor of
disclosure overlaps to a large degree with whether the initial evidentiary
burden has been met. Payne involved one transaction and a seven-month
gap in arrest, circumstances which were relevant to both the initial burden
as well as the ultimate balancing.



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      We agree that this case is more akin to Watson and that Payne is

distinguishable.   Officer McCook observed Appellant on three separate

occasions over the span of eighteen days, with the last observation occurring

shortly before his arrest. Thus, unlike Payne, this case does not involve a

single incident nor does it involve a long lapse of time between sale and

arrest such that there is a reasonable inference of faulty memory.

Furthermore, all transactions in this case involved vials of crack cocaine with

purple lids, and similar items were discovered in the vehicle parked outside

1928 Thayer Street, thereby establishing that the deliveries likely came from

the same source. While Appellant’s direct connection to those items is not

as strong as in Watson, that fact is simply one consideration in the overall

inquiry.

      We conclude that Appellant’s bare assertion of mistaken identity failed

to carry his initial burden under the circumstances of this case.          Our

precedents have observed, “Although the defendant plainly cannot be

expected to show that such information will actually be helpful to his

defense, the record should at least suggest a reasonable possibility

that the information might be helpful, so that it would be unfair to

withhold it.”   Herron, supra at 1230 (emphasis added).           While some

situations may warrant proceeding directly to a balancing even without any

additional offer of proof, such as in Payne, this case is not in that class for




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the reasons discussed supra. Accordingly, we agree that Appellant failed to

meet his initial burden.

      In the alternative, we find, as we did in Watson, that the balancing of

the principles announced in Roviaro does not favor disclosure.          First, the

fact that Appellant was observed on multiple occasions undercuts the need

for disclosure.   In Bing, supra, our Supreme Court explained, “In prior

cases in which this Court has required the identity of an eyewitness

informant to be revealed, the guilt of the defendant was established solely

through the testimony of police officers who had viewed the defendant only

a single time, or through the uncorroborated testimony of a single officer.”

Id. at 58.   The present case is somewhere between these two scenarios:

while guilt was established through the uncorroborated testimony of one

officer, that officer viewed Appellant on multiple occasions, including the day

of the arrest. Bing observed that the need for disclosure is greater when

dealing with a single incident, due to the risk of misidentification:

      [N]umerous viewings substantially undermine the need for
      disclosure of the identity of the confidential informant on the
      ground of misidentification. Thus, the risk of misidentification
      that was present in Payne, Carter, and Roebuck is not present
      in the instant case. The fact that there were numerous
      observations of the seller, although not legally determinative,
      weighs in favor of maintaining the Commonwealth's privilege.

Id. at 59-60 (citation omitted). Hence, the reliability of the identifications is

linked to the need to disclose. Id. at 59, n. 5 (“[T]he fact that the troopers

were acquainted with appellant prior to [the incident] . . . remains relevant

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to the reliability of their identifications of him and thus relevant to the

disclosure issue.”).   The instant facts concern three separate observations

from one officer, and we find that the numerous observations, plus the

surveillance from a short distance, are factors that weigh in favor of

maintaining the privilege. With respect to likelihood of misidentification, we

note that Officer McCook testified that Appellant was not present on two of

the other days, thereby suggesting attentive observation.

      Next, we note that the existence of other witnesses also weighs in

favor of non-disclosure. This was not a situation, as in Payne, where the

alleged drug sale took place in an isolated location. The drug sales herein

were conducted in the open. Additionally, Appellant maintained that he was

innocently caught up in the raid; logically, he was in a position to call other

witnesses to establish his lack of connection to the area.           Compare

Roebuck, supra at 1284, n.7 (concluding that disclosure was necessary

despite presence of third party; however, record unclear as to whether the

third party witness saw or heard the sale at issue and, in any event, the

witness “was under indictment for [his] participation in [the sale].”)

      Finally, we note that the trial court properly considered the potential

threat to the informants’ safety.   Bing, supra at 60 (“reasonably specific

type of danger” justifies non-disclosure).        Much of Officer McCook’s

testimony highlighted general concerns for the safety of confidential

informants that are already accounted for in the existence of the privilege,

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and therefore we agree with Appellant that those statements alone did not

constitute a reasonably specific type of danger.     However, the officer also

stated that one of the two CIs “doesn’t want to work right now because he’s

in fear that he may have been compromised.”             N.T. Pre-Trial motion,

3/11/15, at 29. We find that this factor is relevant, albeit minimally so in

light of the non-specific threat, and slightly tips in favor of non-disclosure.7

Thus, having given consideration to all the relevant circumstances, we find

that the trial court did not abuse its discretion in refusing to disclose the

identities.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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7 Officer McCook indicated that this particular CI was used in other deals,
and therefore it is unclear whether the CI’s fear was connected to this case
or some other matter.



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