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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                         :
LUGMAN GARVIN,                           :         No. 2095 EDA 2016
                                         :
                       Appellant         :


           Appeal from the Judgment of Sentence, June 9, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0007786-2015


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 16, 2018

     Lugman Garvin appeals from the June 9, 2016 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

conviction in a waiver trial of possession of a controlled substance with

intent to deliver, possession of a controlled substance, and conspiracy. 1 The

trial court imposed a concurrent sentence of one to two years of

incarceration plus two years of probation on the possession of a controlled

substance with intent to deliver conviction and no further penalty on the

remaining convictions. We affirm.

     The trial court set forth the following:

           Using a confidential informant, the police set up a
           surveillance of 6311 Girard Avenue for the sale of

1 35 P.S. §§ 780-113(a)(30) and 780-113(a)(16) and 18 Pa.C.S.A. § 903,
respectively.
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          narcotics. Police Officer Charles Kepusniak testified
          that on June 19, 2015, he observed [appellant] and
          a female (later identified as Dacia Reeves) standing
          on the steps of 6311 Girard Avenue.              The
          confidential informant was given forty ($40.00)
          dollars pre-recorded buy money and was observed
          going to the house and engaging in conversation
          with [appellant] and Ms. Reeves.       After handing
          Ms. Reeves the money, all three (3) individuals
          entered the property together.            While the
          confidential informant was still inside the property,
          [appellant] exited and was observed talking on a cell
          phone before going back into the house.            An
          unknown black male then arrived and entered the
          property; the confidential informant immediately left
          the house and returned to Officer Kepusniak with
          two (2) red-tinted packets of crack cocaine and
          two (2) jars containing a green weed substance
          (marijuana).

          Officer Kepusniak returned to 6311 Girard Avenue on
          June 22, 2015 and observed [appellant] exit the
          house and sit on the step.         Using a different
          confidential informant, Officer Kepusniak observed
          the    second    confidential  informant   approach
          [appellant] on the step and hand him the
          pre-recorded buy money.       [Appellant] was then
          observed waving to another individual (later
          identified as Larry Koou) who was standing on the
          northeast corner of 63rd Street and Girard Avenue;
          Mr. Koou walked toward the house as soon as
          [appellant] waved. Mr. Koou approached the house
          and met the confidential informant between the
          house where [appellant] was sitting and the corner
          where Mr. Koou was standing. Officer Kepusniak
          observed a hand-to-hand transaction between
          Mr. Koou and the confidential informant; [appellant]
          was approximately fifteen (15) feet away from the
          transaction. The confidential informant returned to
          Officer Kepusniak with packets of marijuana.

          On June 24, 2015, a third day-time surveillance was
          set up; the police also had a search warrant for the
          property.    A short time later, [appellant] and


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            Mr. Koou     walked    past   the    vehicle  where
            Officer Kepusniak had set up surveillance and cut
            across the street. Both men went into 6311 Girard
            Avenue for approximately 30 seconds. When they
            exited, they walked eastbound on the north side of
            Girard Avenue.       Officer Kepusniak gave their
            description, direction, and location to back-up
            officers. [Appellant] and Mr. Koou were stopped and
            placed under arrest at the corner of 63rd Street and
            Girard Avenue. Ms. Reeves was arrested inside the
            apartment when the search warrant was executed.
            Inside the living room, a mattress was found on the
            floor and next to it was one (1) clear bag with
            three (3) yellow-tinted packets, each containing an
            off-white chunky substance (crack cocaine). Mail
            found inside the residence was in Ms. Reeves [sic]
            name only.

            Police Officer Carlos Buitrago testified that he was
            working as back-up when Officer Kepusniak executed
            the search warrant at 6311 Girard Avenue on
            June 24, 2016. Officer Buitrago stopped [appellant]
            on the 6300 block of Girard Avenue and recovered
            One Hundred Six ($106.00) Dollars, a cell phone,
            and keys to the front exterior door and inside first
            floor apartment door of 6311 Girard Avenue.

Trial court opinion, 1/25/17 at 2-3 (citations to notes of testimony omitted).

      The record reflects that following his conviction and imposition of

sentence, appellant filed a timely notice of appeal to this court.        The trial

court ordered appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).        Appellant timely complied on

July 25, 2016, and also requested an extension of time                  to file a

supplemental Rule 1925(b) statement upon receipt of all notes of testimony.

The trial court granted that request.         The certified record before us,

however,   demonstrates    that   appellant    did   not   file   a   supplemental


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Rule 1925(b) statement.     On January 25, 2017, the trial court filed its

Rule 1925(a) opinion.

      Appellant raises the following issue for our review:

            Did not the trial court err by failing to order the
            disclosure of the identity of two confidential
            informants to whom appellant allegedly sold, or
            conspired to sell, drugs where:        1) appellant’s
            defense was that he was merely present; 2) no
            police officer witnessed the first drug sale; 3) the
            informant was the only available civilian eyewitness
            to the second sale; and 4) the Commonwealth failed
            to make the required specific showing that the need
            for nondisclosure outweighed appellant’s right to
            present a defense?

Appellant’s brief at 3.2

      “Our standard of review of claims that a trial court erred in its

disposition of an informant’s identity is confined to abuse of discretion.”

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

omitted).

            The Commonwealth enjoys a qualified privilege to
            withhold the identity of a confidential source. In
            order to overcome this qualified privilege and obtain
            disclosure of a confidential informant’s identity, a
            defendant must first establish, pursuant to
            Rule 573(B)(2)(a)(i), that the information sought is
            material to the preparation of the defense and that
            the request is reasonable. Only after the defendant
            shows that the identity of the confidential informant
            is material to the defense is the trial court required
            to exercise its discretion to determine whether the
            information should be revealed by balancing relevant

2 We note that in appellant’s Rule 1925(b) statement, he also raised a
sufficiency of the evidence challenge.  Appellant has abandoned that
challenge on appeal.


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            factors, which are initially weighted toward the
            Commonwealth.

Id. at 607-608 (citations omitted).

      In his brief, appellant contends that he met his initial burden of

demonstrating that disclosure of the identities of the two confidential

informants (“CIs”) was material to the preparation of his defense that he

was “merely present” during the drug transactions.        (Appellant’s brief at

10-11.) As such, appellant argues that because he testified at the hearing

on his motion that he did not sell narcotics to those CIs, “[h]e was wrongly

deprived of the opportunity to call the [CIs] as his witnesses at trial in the

hopes that their testimony would corroborate his own.” (Id. at 12).

      In his motion to compel the identities of the CIs, however, appellant

stated that he would “present a defense of mistaken identity and/or

fabrication at trial.” (Appellant’s “motion to compel disclosure of confidential

informant identity or dismiss all charges,” 12/3/15 at unnumbered page 3,

¶ 4). Indeed, during oral argument on his motion, appellant argued that his

“defense in this case is police fabrication” with respect to the first drug

transaction and that “the police made a mistake or it’s a fabrication” with

respect to the second drug transaction. (Notes of testimony, 12/4/15 at 5,

16.) On appeal, appellant now claims that the trial court erred in denying

his motion to disclose the identities of the CIs because disclosure was

material to his defense of mere presence.      (Appellant’s brief in passim.)

Because the record belies appellant’s claim that his defense was mere


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presence and because appellant failed to raise this issue in the trial court,

appellant waives the issue on appeal.     See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/16/18




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