J-S65007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARC S. BATES A/K/A MARC S.              :
 BATTES                                   :
                                          :   No. 1707 MDA 2017
                    Appellant             :

          Appeal from the Judgment of Sentence August 26, 2017
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0001906-2014


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 24, 2018

      Marc S. Bates, also known as Marc S. Battes, appeals from the judgment

of sentence entered August 26, 2017, in the Lebanon County Court of

Common Pleas. We affirm.

      This Court previously summarized the facts of the case and initial

procedural history as follows:

            On October 14, 2014, the Commonwealth charged
      [Appellant] with delivery of cocaine and criminal use of a
      communications facility. At trial, the Commonwealth presented
      evidence that Sergeant Brett Hopkins of the Lebanon County Drug
      Task Force utilized a confidential informant (“CI”) to introduce him
      to a cocaine dealer known only as “Mighty Mike.” N.T., Trial,
      6/10/15, at 4–8. The CI contacted Mighty Mike and arranged for
      a cocaine transaction. See id., at 9.

            Shortly before 10 p.m., a white car, later determined to be
      [Appellant’s], pulled up on the street in front of Sergeant Hopkins
      and the CI. See id., at 9; 33–34. Sergeant Hopkins testified that
      he saw, but could not identify, a Hispanic female driving the
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     vehicle. See id., at 26. A black male exited the vehicle and
     approached the CI. See id., at 9. Sergeant Hopkins handed the
     CI $100 of “prerecorded drug task force funds,” and the CI
     immediately handed the money to the black male. Id. In
     exchange, the man handed the CI a white envelope containing
     crack cocaine and then quickly departed. See id., at 10.

            The transaction lasted no more than a minute. See id., at
     26. During that time, Sergeant Hopkins stood within inches of the
     black male. See id., at 17. He stated that he got a clear look at
     the man’s face. See id., at 28. Sergeant Hopkins positively
     identified [Appellant] as the man who handed the envelope to the
     CI. See id., at 8.

             [Appellant] pursued a mistaken identity defense at trial. In
     furtherance of this strategy, he sought pre-trial disclosure of the
     identity of the CI.        The trial court denied this request.
     Furthermore, [Appellant] sought to present the testimony of his
     girlfriend, Ali Marinkov. [Appellant] proffered that Marinkov would
     testify that during the time in question, she would take
     [Appellant’s] car with people other than [Appellant] to engage in
     narcotics transactions.      The trial court barred Marinkov’s
     testimony on the grounds that she was an undisclosed alibi
     witness. Finally, [Appellant] sought to introduce a picture of
     himself and his brother in an attempt to bolster his argument that
     Sergeant Hopkins had mistakenly identified him. The trial court
     denied admission of the photograph on the ground that
     [Appellant] could not present the testimony of the person who had
     taken the photograph.

           The trial court entered a directed verdict on the criminal use
     of a communications facil[i]ty charge, and the jury convicted
     [Appellant] on the delivery of cocaine charge. [Appellant] filed a
     post-sentence motion, which the trial court denied.

Commonwealth v. Bates, 161 A.3d 376, 291 MDA 2016 (Pa. Super. filed

February 13, 2017) (unpublished memorandum at *1).

     In the prior appeal, we affirmed the trial court’s determination that the

evidence at trial was sufficient to establish Appellant’s identity as the

perpetrator, that the verdict was not against the weight of the evidence, and

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that the trial court did not err in denying admission of the photograph of

Appellant’s brother because the photograph was not relevant to any issue at

trial, thereby affirming the judgment of sentence in part. However, we also

concluded that we were unable to address Appellant’s claim that the trial court

erred in denying the pretrial disclosure of the CI’s identity, and we remanded

to the trial court for a hearing.              Bates, 291 MDA 2016 (unpublished

memorandum at *4). In addition, we determined that the trial court erred in

denying Appellant the opportunity to present the testimony of his girlfriend

because it impacted Appellant’s mistaken-identity defense. Thus, we vacated

that ruling and remanded “for both sides to be given an opportunity to provide

proffers or evidence addressing the issue of relevance.” Id.

       Upon remand, on September 25, 2017, the trial court held a hearing at

which Sergeant Hopkins was the sole witness. Following the hearing, the trial

court ruled from the bench, and subsequently filed an order on September 26,

2017, confirming its denial of disclosure of the CI’s identity. The trial court

concluded that “the disclosure of the identification of the [CI] in this case could

and would present danger to that [CI] . . . .” Order, 9/26/17, at 2. Also in

that order, the trial court observed that Appellant waived the issue regarding

the presentation of Appellant’s girlfriend as a witness.1 Id. Appellant filed a



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1  Appellant confirmed at the remand hearing that he was withdrawing the
issue concerning his request to have his girlfriend testify. N.T., 9/25/17, at
13–14.

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timely notice of appeal; Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant raises the following single issue for review:       “Did the Trial

Court err by denying Appellant’s oral pretrial motion for disclosure of the

identity of the Confidential Informant?” Appellant’s Brief at 4. In making this

argument, Appellant asserts that the Commonwealth failed to establish that

at the time of trial, “there existed a reasonably specific type of danger that

would result from the disclosure of the CI’s identity.” Appellant’s Brief at 11.

Appellant does not support any bald allegation in his brief with citation to the

notes of testimony.2 Id. at 11–12. See Commonwealth v. Rompilla, 983

A.2d 1207 (Pa. 2009) (an appellant’s failure to support bald assertions with

sufficient citation can impede meaningful judicial review).

        “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. Jordan, 125 A.3d 55, 62 (Pa. Super. 2015)

(en banc).     Jordan delineated the applicable Pennsylvania Supreme Court

precedent     outlining    the    test   employed   to   determine    whether    the

Commonwealth must reveal the identity of a confidential informant, as



____________________________________________


2 We note that the Commonwealth, as well, has failed to support its references
to Sergeant Hopkins’s testimony with citations to the notes of testimony.
Commonwealth’s Brief at 11.



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contained in Commonwealth v. Bing, 713 A.2d 56 (Pa. 1998).3                The

Commonwealth retains a qualified privilege to withhold the identity of a

confidential source.      Commonwealth v. Watson, 69 A.3d 605, 607 (Pa.

Super. 2013). In order to overcome the Commonwealth’s privilege and obtain

disclosure of a CI’s identity during pretrial discovery, the defendant must

establish that the informant’s identity is material to the preparation of a

defense and that the request is reasonable.       Jordan, 125 A.3d at 63;

Pa.R.Crim.P. 573(B)(2)(i). The trial court may not exercise its discretion to

determine whether disclosure is required until the defendant makes the

threshold showing of materiality and reasonableness. Jordan, 125 A.3d at

63. If a defendant is able to establish the threshold showing of materiality

and reasonableness, the court must:

       balance the public interest in the police’s ability to obtain
       information[,] against the defendant’s right to prepare his
       defense. In this connection, we consider the crime, the potential
       defense, and the significance of the confidential informant’s
       testimony. The scales tip in favor of disclosure if the
       Commonwealth will be relying on police testimony based
       on a single observation. If other proof corroborates a police
       officer’s testimony, disclosure is not mandated. Furthermore, the
       safety of the confidential informant can be a controlling
       factor in determining whether to reveal a source’s identity.




____________________________________________


3  While Appellant cites to Commonwealth v. Marsh, 997 A.2d 318 (Pa.
2010), for the applicable test, the Jordan Court noted that Marsh was a
plurality decision with respect to the balancing factors to be applied in this
context. Jordan, 125 A.3d at 62 n.3.

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Id. (emphases added). We previously concluded that Appellant “established

that the identity of the CI was material to his mistaken identity defense.”

Bates, 291 MDA 2016 (unpublished memorandum at *4). We also previously

concluded that “absent evidence of a ‘reasonably specific type of danger’ to

the CI, disclosure of the [CI’s] identity was warranted.” Id. Thus, the only

question before the court upon remand regarding this issue concerned

whether the safety of the CI compelled nondisclosure of his identity.

       As noted supra, Sergeant Hopkins was the sole witness at the

September 25, 2017 hearing upon remand. Sergeant Hopkins testified that

in early 2015, prior to trial, he and Detective Mong4 met with the CI. N.T.,

9/25/17, at 5.     The CI relayed to police that he had been “harassed by a

girlfriend of a [d]efendant[] that [he] had been involved in a drug buy [with]

and the person was already incarcerated.” Id. at 6. In another instance, the

CI, who had recently had hip surgery, had been assaulted in retaliation for his

cooperation before the trial. Id. at 6, 9. The CI believed his name “was out

there and [he was] being targeted because of cooperation with law

enforcement.” Id. at 6. Sergeant Hopkins, a thirty-year member of the Drug

Task Force who worked with informants on a weekly basis, testified that he

was concerned, based on his knowledge of the CI’s involvement in this case,




____________________________________________


4   Detective Mong’s given name is not identified in the record.

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that the CI “would be subject to further harassment or assault if his or her

identity were disclosed in this case.” Id. at 7.

       Based on this evidence, the trial court found:

       by evidence clearly that the disclosure of the identification of the
       [CI] in this case could and would present danger to that [CI] if it
       was disclosed and therefore it’s an exception to the Payne[5] case
       consistent with Commonwealth v. Marsh, 997 A.2d 318. For that
       reason, the [c]ourt would deny the Pre-Trial Motion had it been
       heard at the appropriate time and also rules in this manner upon
       remand by the Superior Court.

Order, 9/26/17, at 2.

       Thus, the trial court weighed the competing interests and concluded that

the scales tip against disclosure of the CI’s identity. Here, as in Bing, the

Commonwealth demonstrated, through Sergeant Hopkins’s testimony, that

revealing the identity of the [CI] could place his physical safety in jeopardy.

“It is this showing of a reasonably specific type of danger which justifies

keeping an informant’s identity confidential.” Bing, 713 A.2d at 60 (citing

Commonwealth v. Miller, 518 A.2d 1187 (Pa. 1986).6                   This was a



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5 Commonwealth v. Payne, 656 A.2d 77 (Pa. 1994), wherein our Supreme
Court held that the combination of the single view of the appellant by one
police officer and the time lapse between the sale and the arrest mandated
that the identity of the informant should have been revealed. Payne did not
involve testimony concerning the CI’s safety.

6  Appellant’s bald assertion in his brief, cited without any substantiation, that
the CI’s identity was disclosed in some unidentified trial does not require a
different result. Appellant’s Brief at 11. See N.T., 9/25/17, at 8–9 (CI’s
identity was disclosed in a trial subsequent to Appellant’s trial and CI was
assaulted thereby requiring hospitalization).

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determination left to the sound discretion of the trial court, and we discern no

abuse of that discretion.    Accordingly, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2018




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