J-S04014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GREGORY HARVEY,

                            Appellant                 No. 705 EDA 2016


           Appeal from the Judgment of Sentence February 29, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009209-2014


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 29, 2017

       Appellant, Gregory Harvey, appeals from the judgment of sentence

entered following his conviction of possession with the intent to deliver

illegal narcotics (“PWID”), possessing an instrument of crime (“PIC”),

criminal conspiracy, and criminal use of a communication facility. 1     After

careful consideration, we affirm in part, reverse in part, vacate the judgment

of sentence, and remand for resentencing.

       The trial court summarized the facts of this case as follows:

             On June 19, 2014, while investigating alleged narcotic
       sales at 909 West Arizona Street, Officers Barber and Simmons
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 907; 18 Pa.C.S. § 903; and 18
Pa.C.S. § 7512, respectively.
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     of the Philadelphia Police Department provided a confidential
     informant with $20 prerecorded buy money. Officer Barber then
     directed the confidential informant to the area of 909 West
     Arizona Street [(“the residence”)]. Officer Simmons observed
     the confidential informant go to that location, knock on the door
     and was admitted into the home by an unknown person. After
     approximately two minutes, the confidential informant exited the
     home while Appellant watched by the door. The informant then
     proceeded to Officer Barber and handed him two blue Ziploc
     packets and a phone number which Appellant provided him.
     After testing, the Ziploc packets were found to contain cocaine.

           On June 24, 201[4], Officers Coaxum and Simmons
     provided the same informant with $20 of prerecorded buy
     money and directed him to the same residence. The informant
     knocked on the door and was greeted by Appellant.          The
     informant was admitted into the residence by the Appellant and
     stayed approximately two minutes. He then exited the house,
     returned to where Officer Coaxum was stationed and handed
     over two blue Ziploc packets. After testing, the Ziploc packets
     were found to contain cocaine.

           On June 26, 201[4], Officers Simmons and McLean dialed
     the phone number given to the informant on the first trip. Once
     they received no answer, they provided the same informant with
     $20 prerecorded buy money. The informant then returned to
     the residence. Prior to the informant arriving at the residence,
     the police officers observed another male, later identified as Mr.
     Wade, walk up to the home, take out a key from his pocket,
     unlock the front door and enter the home. Moments later, the
     informant arrived, knocked on the door and was admitted by Mr.
     Wade. After approximately two minutes, the informant exited
     the residence while Mr. Wade watched from the door. The
     informant met with Officer McLean and handed him two blue
     Ziploc packets, which, after testing, were found to contain
     cocaine.

            The officers then executed a search and seizure warrant at
     909 West Arizona Street. Upon entering, the officers observed a
     living room, kitchen, a basement, and three bedrooms on the
     second floor. On the second floor, Appellant’s room, the master
     bedroom, was the only room that appeared to be occupied. Only
     Appellant’s clothes were found in the home.         Officer Floyd
     arrested Mr. Wade in the living room and confiscated $24 and a

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       key to the front door. Officer Francis arrested Appellant in the
       master bedroom on the second floor. In that bedroom, Officer
       Francis found $1,075 in cash on the dresser, $25 in his gym
       shorts, and a cell phone that responded to the number that was
       given to the informant on his first visit. In the kitchen, Officer
       Lee found a window sill with a false compartment which
       contained $20 buy money from that day and twenty-seven blue
       plastic Ziploc packets containing cocaine which were consistent
       with the ones previously purchased. Officer Barber confiscated
       two letters from the dining room addressed to the Appellant.
       Other than Mr. Wade’s presence in the house and the key he had
       in his pocket, there was no indication that Mr. Wade lived in the
       home.

Trial Court Opinion, 7/25/16, at 2-3 (internal citations omitted).

       Following a bench trial on December 14, 2015, Appellant was

convicted of the above-referenced charges.       Appellant was sentenced on

February 29, 2016, to an aggregate term of two and one-half to five years of

incarceration, followed by five years of probation. Appellant filed a pro se

appeal on March 2, 2016. Appellant’s counsel filed a post-sentence motion

on March 3, 2016, and the trial court denied the motion by order entered

March 7, 2016.2        Both the trial court and Appellant complied with the

mandates of Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:
____________________________________________


2
  While Appellant’s notice of appeal was premature when filed, it was
perfected by the subsequent action of his counsel in filing a timely post-
sentence motion, which the trial court reviewed and denied on the merits.
See Commonwealth v. Cooper, 27 A.3d 994, 1007-1008 (Pa. 2011)
(concluding the trial court appropriately treated the appellant’s pro se notice
of appeal as a premature filing that was perfected upon the trial court’s
proper consideration and denial of the subsequent, timely-filed, counseled
post-sentence motion).



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      I.      Is Appellant entitled to an arrest of judgment with regard
      to his convictions for possession with intent to deliver a
      controlled      substance,     criminal    conspiracy,     possessing
      instruments of crime and criminal use [of] communications
      facility since the evidence is insufficient to sustain the verdicts of
      guilt as the Commonwealth failed to sustain its burden of
      proving Appellant’s guilt beyond a reasonable doubt?

      II.   Is Appellant entitled to a new trial since the trial court
      erred when it denied his motion to reveal the identity of the
      confidential informant?

      III. Is Appellant entitled to be resentenced since his concurrent
      two and one-half to five year sentences for possession with
      intent to deliver a controlled substance and criminal conspiracy
      are unreasonable since they are excessive and do not reflect his
      character, history or condition?

Appellant’s Brief at 4.

      In his first issue, Appellant asserts that he is entitled to an arrest of

judgment on his convictions for PWID, criminal conspiracy, PIC, and criminal

use of communications facility because there was insufficient evidence to

sustain the convictions. Appellant’s Brief at 15. The standard for evaluating

sufficiency claims is as follows:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial 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

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     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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

     With regard to his conviction for PWID, Appellant maintains that the

Commonwealth failed to sustain its burden of proving his guilt beyond a

reasonable doubt.       Appellant’s Brief at 15. Appellant contends that the

Commonwealth failed to establish that Appellant constructively possessed

the drugs or money recovered from the residence. Id. at 21. Appellant also

argues that other individuals, including Mr. Wade, had access to the

residence, and it may have been these other individuals who provided drugs

to the confidential informant (“CI”). Id. at 24. Appellant asserts that the

Commonwealth failed to establish that he had control over the drugs found

in the residence. Id.

     In order to uphold a conviction for PWID pursuant to 35 P.S. § 780-

113(a)(30), the Commonwealth must prove beyond a reasonable doubt that

the defendant possessed a controlled substance and did so with the intent to

deliver it. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.

2000) (en banc). The intent to deliver may be inferred from an examination

of the facts and circumstances surrounding the case.     Commonwealth v.

Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). “Factors to consider

in determining whether the drugs were possessed with the intent to deliver

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include the particular method of packaging, the form of the drug, and the

behavior of the defendant.” Commonwealth v. Perez, 931 A.2d 703, 708

(Pa. Super. 2007).

     Where the contraband a person is charged with possessing is not

found on the person of the defendant, the Commonwealth is required to

prove constructive possession. Commonwealth v.Walker, 874 A.2d 667,

677 (Pa. Super. 2005).

     Constructive possession is a legal fiction, a pragmatic construct
     to deal with the realities of criminal law enforcement.
     Constructive possession is an inference arising from a set of
     facts that possession of the contraband was more likely than not.
     We have defined constructive possession as conscious dominion.
     We subsequently defined conscious dominion as the power to
     control the contraband and the intent to exercise that control.
     To aid application, we have held that constructive possession
     may be established by the totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (internal

quotation marks omitted). Additionally, it is possible for two people to have

joint constructive possession of an item of contraband. Commonwealth v.

Kinard, 95 A.3d 279, 292 (Pa. Super. 2014).

     Here, the evidence reflects that on June 19, 2014, the first time

officers arranged for the CI to approach the residence, Officer Leslie

Simmons observed Appellant in the doorway of the residence when the CI

exited. N.T., 12/14/15, at 6-9. Officers watched the CI leave the residence

and go directly to another officer to whom the CI provided two Ziploc plastic

packets. Id. at 7. Those packets contained cocaine. Id. at 7.


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      On June 24, 2014, the CI was again sent to the residence with pre-

recorded buy money. N.T., 12/14/15, at 9. When the CI knocked on the

door of the residence, Appellant greeted the CI. Id. at 9. Appellant and the

CI proceeded inside the residence and approximately one to two minutes

later, the CI exited the residence.    Id. at 9.   Appellant remained at the

doorway of the residence watching the CI leave. Id. at 10. The CI again

returned to the officers and produced two blue Ziploc plastic packets which

later tested positive for cocaine. Id. at 10.

      On June 26, 2014, officers met with the same CI. Id. at 11. During

the June 19, 2014 encounter, the CI was provided a telephone number by

the individual in the residence. Id. at 11, 13. Officers dialed that number,

but there was no answer. Id. at 11. As a result, the CI was provided pre-

recorded buy money and directed to the residence. Id. at 11-12. Prior to

the CI reaching the door of the residence, another male, later identified as

Mr. Wade, entered the location by using a key.      Id. at 12.   When the CI

arrived at the door, Mr. Wade opened the door for the CI. Id. After being in

the residence approximately one to two minutes, the CI exited and again

met with officers. Id. at 12. The CI gave officers two plastic Ziploc packets

that tested positive for cocaine. Id. at 12.

      Approximately five minutes after the CI’s purchase on June 26, 2014,

officers executed a search and seizure warrant at the residence. Id. at 13.

Officers arrested Mr. Wade in the living room and confiscated $24.00 and a


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key that unlocked the front door. Id. at 13. Officers arrested Appellant in

the master bedroom on the second floor.         Id. at 13.     When arrested,

Appellant was nude.    Id.   Officers confiscated $1,075 from that room and

$25 from Appellant’s gym shorts. Id. at 13. A cellular telephone that was

plugged into an electrical outlet was also recovered from that room. Id. at

13-14. The telephone responded to the number that was provided to the CI

on his first controlled buy at the residence on June 19, 2014. Id. at 13-15.

Officer Simmons testified that the room in which Appellant was arrested

appeared to be the only room where someone was living. Id. at 15. Mail

addressed to Appellant at the residence was found in the bedroom where

Appellant was arrested and on a table in the dining room.           Id. at 14.

Additionally, officers confiscated twenty-seven blue Ziploc plastic packets

containing cocaine from a hidden compartment in the kitchen. Id. at 14-15.

Officers also recovered from the residence “one clear Ziploc packet[] and 31

red Ziploc packets.   Inside those packets . . . was cocaine powder.         62

yellow pills, Your Honor alleged Percocet. Two silver razor blades, one in [a]

Ziploc[] packet containing new and unused blue Ziploc packets.” Id. at 14.

      Viewing   the   evidence   in   the   light    most   favorable   to   the

Commonwealth, there is sufficient evidence to establish every element of

PWID.   Although the drugs were discovered in the residence and not on

Appellant’s person, the totality of circumstances supports the conclusion that

Appellant constructively possessed the drugs.       Officers observed Appellant


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interact directly with the CI on two of the three encounters at the residence.

The evidence supports the conclusion that Appellant was living at the

residence. During the execution of the search warrant, Appellant was found

naked in a bedroom of the residence that appeared to be inhabited by him.

The telephone number given to the CI on the first encounter matched the

number on the phone found in the same room as Appellant when he was

arrested. Buy money from the CI’s encounter on June 26, 2014, was found

in the hidden compartment in the kitchen with the drugs, supporting the

conclusion that someone in the residence conducted the sale with the CI on

that date. Id. at 25. Moreover, the fact that Mr. Wade and, according to

Appellant, others had access to the residence, does not bar the conclusion

that Appellant constructively possessed the drugs. See Kinard, 95 A.3d at

292 (stating that it is possible for two people to have joint constructive

possession of an item of contraband.).      Additionally, the volume of and

manner in which the drugs were packaged supports the conclusion that

Appellant intended to deliver these drugs and that they were not for

personal consumption. Perez, 931 A.2d at 708. Thus, we agree with the

trial court’s conclusion that there was sufficient evidence to establish that

Appellant possessed the drugs with the intent to deliver them.

      Appellant also argues that the Commonwealth failed to prove beyond a

reasonable doubt that Appellant was engaged in a drug trafficking

conspiracy with any individuals inside his residence. Appellant’s Brief at 24-


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25.   Appellant contends that the evidence is insufficient to prove that he

entered into an agreement with anyone to sell drugs inside the residence.

Id. at 27. Appellant asserts that while he was present at the residence and

may have stayed there on occasion, and others also frequented the

premises, these facts do not establish a conspiracy.   Id. at 27. Appellant

maintains that mere presence or association does not establish a conspiracy.

Id. Appellant also contends that it is significant that Mr. Wade had a key to

the premises, but Appellant did not. Id.

      Pursuant to the Crimes Code, conspiracy is defined as follows:

      § 903. Criminal conspiracy

      (a) Definition of conspiracy.-- A person is guilty of conspiracy
      with another person or persons to commit a crime if with the
      intent of promoting or facilitating its commission he:

            (1) agrees with such other person or persons that
            they or one or more of them will engage in conduct
            which constitutes such crime or an attempt or
            solicitation to commit such crime; or

            (2) agrees to aid such other person or persons in the
            planning or commission of such crime or of an
            attempt or solicitation to commit such crime.

18 Pa.C.S. § 903(a).

      A conspiracy is almost always proved through circumstantial
      evidence. The conduct of the parties and the circumstances
      surrounding their conduct may create a web of evidence linking
      the accused to the alleged conspiracy beyond a reasonable
      doubt.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)

(internal citations and quotation marks omitted).

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     The circumstantial evidence in this case, as previously outlined,

supports the trial court’s conclusion that Appellant was involved in a

conspiracy to sell drugs.   Appellant was observed interacting directly with

the CI during two of the controlled buys.      The evidence indicates that

Appellant lived at the home and that Mr. Wade had unfettered access to the

residence as reflected by the fact that Mr. Wade had a key to the residence.

N.T., 12/14/15, at 12.       Mr. Wade was seen entering the residence

immediately prior to the CI’s arrival on the third controlled buy, and he

opened the door for the CI.      Id.   Both parties were at the residence

immediately following the controlled buy on June 26, 2014.     Id. at 15-16.

The pre-recorded buy money and additional drugs were also found at the

residence during execution of the warrant. Id. Thus, viewing the evidence

in the light most favorable to the Commonwealth, we agree with the trial

court that there was sufficient evidence supporting the conclusion that

Appellant and Mr. Wade had conspired to sell drugs.

     Appellant also argues that there was insufficient evidence to sustain

his convictions of PIC and criminal use of a communication facility.

Appellant’s Brief at 28. Appellant contends that while a telephone number

was allegedly provided to the police and/or CI, a telephone was not

identified as facilitating any of the drug transactions. Id. at 28. Appellant

maintains that “[t]here was no testimony presented at trial to show that

Appellant constructively possessed any drugs or money found at the


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residence or the telephone allegedly used to facilitate any drug transaction

since it was not established that Appellant knew or had reason to know that

drugs were being sold at the premises.” Id. at 28-29.

      The offense of criminal use of a communication facility is defined as

follows:

      A person commits a felony of the third degree if that person uses
      a communication facility to commit, cause or facilitate the
      commission or the attempt thereof of any crime which
      constitutes a felony under this title or under the act of April 14,
      1972 (P.L. 233, No. 64), known as The Controlled Substance,
      Drug, Device and Cosmetic Act. Every instance where the
      communication facility is utilized constitutes a separate offense
      under this section.

18 Pa.C.S. § 7512. Thus, to support a conviction under Section 7512, the

Commonwealth must establish beyond a reasonable doubt that:

      (1)   Appellant[]    knowingly   and     intentionally used    a
      communication facility; (2) Appellant[] knowingly, intentionally
      or recklessly facilitated an underlying felony; and (3) the
      underlying felony occurred ... Facilitation has been defined as
      “any use of a communication facility that makes easier the
      commission of the underlying felony.”

Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal

citation omitted).

      As explained previously, we concluded that there was sufficient

evidence to establish that Appellant constructively possessed the drugs and

money found at the residence and intended to deliver the drugs. Thus, the

underlying felony occurred.    Moss, 852 A.2d at 382.        Additionally, the

evidence reflects that the CI was given the cell phone number during his first


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controlled buy, during which officers observed Appellant at the residence.

N.T., 12/14/15, at 11, 13, 15. The telephone number corresponded to the

cell phone that was recovered from the room where Appellant was

apprehended, and it was in close proximity to $1,075.         Id. at 14.   Thus,

viewing the evidence in the light most favorable to the Commonwealth, it is

reasonable for the fact-finder to conclude that Appellant used the cell phone

to facilitate his practice of selling drugs.   Accordingly, Appellant knowingly

and intentionally used the communication facility and knowingly and

intentionally facilitated the felony. Moss, 852 A.2d at 382. We agree with

the trial court that there was sufficient evidence to sustain this conviction.

      In considering Appellant’s remaining conviction, we observe that the

criminal code defines PIC as follows:

      (a) Criminal instruments generally.--A person commits a
      misdemeanor of the first degree if he possesses any instrument
      of crime with intent to employ it criminally.

                                      ***

      (d) Definitions.--As used in this section, the following words
      and phrases shall have the meanings given to them in this
      subsection:

                                      ***

      “Instrument of crime.” Any of the following:

            (1) Anything specially made or specially adapted for
            criminal use.

            (2) Anything used for criminal purposes and
            possessed by the actor under circumstances not
            manifestly appropriate for lawful uses it may have.

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18 Pa.C.S. § 907.

        The telephone number corresponding to the telephone possessed by

Appellant was given to the CI during the first controlled buy on June 19,

2014. N.T., 12/14/15, at 11, 13, and 15. During execution of the search

warrant immediately after the third controlled buy, the same phone was

recovered in the room in which Appellant was apprehended and in close

proximity to $1,075. Id. at 13. Drugs and pre-recorded buy money were

also recovered from the residence. Id. at 15-16, 25. Thus, it is a logical

conclusion that Appellant utilized the telephone to facilitate his drug

dealings.

        In this context, however, we cannot agree that the telephone meets

the definition of an “instrument of crime.”    There is no evidence that the

telephone was “[a]nything specially made or specially adapted for criminal

use.”    18 Pa.C.S. § 907.    Additionally, while arguably Appellant used the

telephone for criminal purposes, there is no evidence that it was possessed

by Appellant “under circumstances not manifestly appropriate for lawful uses

it may have.” Id.

        Moreover this Court has ruled that “the mere use of an item to

facilitate a crime does not transform the item into an instrument of crime for

purposes of the PIC statute.” Commonwealth v. Williams, 808 A.2d 213,

215 (Pa. Super. 2002).       In Williams, a panel of this Court held that a

walkie-talkie the defendant used to facilitate drug sales was not an

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“instrument of crime” for purposes of a conviction under Section 907. Id.

The Williams Court distinguished the facts before it from those presented in

Commonwealth v. Vida, 715 A.2d 1180 (Pa. Super. 1998), where this

Court found that a paint stick the defendant used to paint graffiti on a lamp

pole was an “instrument of crime” under Section 907(d). Id. The Williams

Court explained that in Vida, “the stick itself was the instrument whereby

the criminal mischief (graffiti) was committed.”       Id.   The Williams Court

explained that, conversely in Williams, “[w]hile [A]ppellant’s use of the

walkie-talkie facilitated the narcotics sales, . . . the statute was not intended

to include as instruments of crime equipment not used in the crime itself,

but used only to facilitate the crime.” Id.

          Here, the evidence supports the conclusion that the telephone was

used to facilitate the narcotics sales. It was not an instrument of the crime

itself.    Thus, pursuant to Williams, we are constrained to conclude that

there was insufficient evidence to establish that Appellant was guilty of PIC.

We accordingly vacate Appellant’s judgment of sentence for PIC.

          In his second issue, Appellant argues that he is entitled to a new trial

because the trial court erred when it denied his motion to reveal the identity

of the CI. Appellant’s Brief at 30. Appellant asserts that he established the

materiality of the identity of the CI, and his request was reasonable under

the circumstances of the case.        Id. at 32.   Appellant maintains that the

identity of the CI is crucial to his defense in that testimony presented at trial


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did not identify Appellant as providing drugs to the CI or establish that

Appellant knew that drugs were being sold at the residence.          Id. at 32.

Moreover, Appellant contends that there was no testimony presented to

show that the CI would be in danger should his identity be revealed. Id.

      “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. 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.

Commonwealth v. Watson, 69 A.3d 605, 607-608 (Pa. Super. 2013)

(internal citations omitted).

      In addressing Appellant’s claim, the trial court provided the following

analysis:

      This [CI] was a credible informant. Detective Simmons testified
      he used this particular informant for over ten years which
      resulted in hundreds of arrests, convictions and seizures of
      narcotics. There was no issue of misidentification because there
      were only two people; one of which was the Appellant, who was
      seen letting the [CI] in and out of the home on separate
      occasions. Although the officers did not see the transactions
      take place, the facts and circumstances that the officers

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      observed dictate there was no reasonable possibility that the
      [CI] would give evidence that would exonerate the Appellant.

             Additionally, disclosing the informant’s identity may place
      the informant in danger. The informant used in this case is
      actively working for the police. In the past, Officer Simmons
      personally experienced two [CIs] who were threatened once
      their identities were disclosed. One was stabbed.

            Appellant has failed to show that the [CI] was material to
      the Appellant’s defense of misidentification and that the request
      to disclose the informant’s identity was reasonable. As such,
      this [c]ourt properly denied Appellant’s motion to compel
      disclosure of the [CI’s] identity.

Trial Court Opinion, 7/25/16, at 11.

      We agree with the trial court’s conclusion that Appellant failed to show

that the disclosure of the CI’s identity was material to his defense. Despite

the testifying officers not directly observing the actual drug purchases, the

circumstantial evidence, as discussed previously, was sufficient to support

the conclusion that Appellant possessed drugs and delivered them to the CI.

Appellant fails to present any plausible explanation as to how the CI’s

testimony could have benefitted him. Because Appellant failed to clear the

first hurdle of establishing that disclosure of the identity of the CI was

necessary to his defense, we need not engage in the balancing of relevant

factors to determine whether the CI’s identity should be revealed. Watson,

69 A.3d at 608.




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       In his third issue raised on appeal, Appellant argues that the trial

court’s   aggregate      sentence     of   two      and   one-half   to    five   years   of

imprisonment is unreasonable and manifestly excessive.3                   Appellant’s Brief

at 39. Appellant further asserts that the sentence does not reflect a proper

consideration of his history, character and condition. Id.

       As outlined in our discussion of Appellant’s claims of insufficient

evidence, we are compelled to reverse his conviction for PIC.                      Because

vacating Appellant’s sentence for PIC may disrupt the trial court’s overall

sentencing scheme, we vacate his judgment of sentence in its entirety and

remand for resentencing. See Commonwealth v. Barton-Martin, 5 A.3d

363, 370 (Pa. Super. 2010) (providing that where vacating a sentence

disrupts a trial court’s overall sentencing scheme, this Court will remand to

the trial court for resentencing).             As a result, we need not address

Appellant’s final issue regarding his sentence.

       Conviction     for   PIC     reversed;       remaining   convictions       affirmed.

Judgment      of   sentence    vacated.        Matter     remanded    for    resentencing

consistent with this Memorandum. Jurisdiction relinquished.

____________________________________________


3
  We note that Appellant, throughout his brief, asserts that he is entitled to
resentencing    because    the  concurrent     two-and-one-half-to-five-year
sentences for PWID and criminal conspiracy are unreasonable and excessive.
Appellant’s Brief at 34. Because Appellant also argues that his aggregate
sentence is unreasonable and excessive, as noted, we are compelled to
address his judgment of sentence in its entirety and not merely the
sentences for PWID and criminal conspiracy.



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     Judge Ott joins the Memorandum.

     P.J.E. Stevens files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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