J-S77014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MARC S. BATES A/K/A MARC S. BATTES,

                         Appellant                   No. 291 MDA 2016


         Appeal from the Judgment of Sentence of August 26, 2015
             In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0001906-2014


BEFORE: PANELLA, OLSON AND PLATT,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY OLSON, J.:

                                                 FILED FEBRUARY 13, 2017

      I agree with my learned colleagues that the record compels us to

reject Appellant’s challenges to the weight and sufficiency of the evidence

and to affirm the trial court’s order refusing to admit the photograph of

Appellant and his brother.    I am unable to agree, however, that the trial

court erred in refusing to compel disclosure of the Confidential Informant’s

(CI) identity or in concluding that the testimony of Ali Marinkov, Appellant’s

girlfriend, was inadmissible because Appellant failed to give notice to the

Commonwealth that she would testify as an alibi witness.           For these

reasons, I concur in part and dissent in part.

      As the Majority states, the Commonwealth enjoys a qualified privilege

to withhold the identity of a confidential source.       Commonwealth v.


*Retired Senior Judge assigned to the Superior Court.
J-S77014-16


Watson, 69 A.3d 605, 607 (Pa. Super. 2013). To overcome that privilege,

a defendant must demonstrate that the information sought is material to the

defense and that his request is reasonable.        Id. at 607-608.      Once the

defendant makes the requisite showing, the trial court must exercise its

discretion in determining whether the circumstances warrant disclosure by

balancing relevant factors, which initially tip toward the Commonwealth’s

favor. Id. As the Majority points out, “justice requires the disclosure of the

CI’s identity” if “a single police officer is the only eyewitness to a crime other

than the CI, the arrest was not made shortly after the crime, and the

defendant has presented evidence supporting a mistaken identity defense.”

See Majority Memorandum at 7, citing Commonwealth v. Payne, 656 A.2d

77, 80 (Pa. 1994).     Disclosure may nevertheless be withheld where the

Commonwealth demonstrates that revealing the identity of the CI could

compromise the informant’s safety. Commonwealth v. Marsh, 997 A.2d

318, 324 (Pa. 2010).

      The Majority concludes that the factors identified in Payne support

disclosure.   Specifically, the Majority finds that Sergeant Hopkins was the

sole source of identification evidence showing that Appellant conducted the

transaction at issue. Majority Memorandum at 8. The Majority further finds

that Sergeant Hopkins waited approximately one and one-half months to file

charges in this case and that Appellant demonstrated his willingness to

testify in support of his claim that he did not engage in the drug transaction


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that forms the basis of the instant appeal. Id. Having found that Appellant

met the factors identified in Payne, the Majority remands for further

proceedings to assess safety risks to the CI.

       I cannot agree with the Majority’s application of the factors listed in

Payne.      In that case, the Supreme Court noted that disclosure was not

required where potential corroboration of the officer’s testimony existed.

See Payne, 656 A.2d at 79.                  Indeed, the Court in Payne declared:

“Fundamental requirements of fairness mandate disclosure if the informer is

the only material witness besides the single police officer.” Id. (emphasis

added). Several circumstances lead me to conclude that, apart from the CI,

Sergeant Hopkins was not the only eyewitness to the relevant events.                  At

trial, Sergeant Hopkins testified that Appellant arrived at the site of the

transaction in a white sedan driven by a Hispanic female. N.T., 6/10/15, at

25-26. Neither the parties nor the Majority dispute that the driver was Ms.

Marinkov,     Appellant’s    girlfriend.1      In   rejecting   Appellant’s   sufficiency

challenge, the Majority states, “it is undisputed on appeal that the vehicle

used by the perpetrator was [Appellant’s], and driven by [Appellant’s]

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1
  Appellant’s position throughout this case is that he was misidentified as the
seller of narcotics in the subject transaction and that, at this time, his
girlfriend was in the practice of using his vehicle to transport other drug
dealers to transaction sites in order to fund her drug habit. Hence, even
Appellant’s own theory of this case asserts that, apart from the CI, Sergeant
Hopkins was not the only eyewitness to the illicit exchange.




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girlfriend, [Ms.] Marinkov.”          Majority Memorandum at 4.        Since it is

undisputed that Ms. Marinkov was present at the transaction sub judice, it

follows that Sergeant Hopkins was not the sole witness to the transaction

(other than the CI) and that fundamental fairness does not mandate

disclosure of the CI’s identity. Given this conclusion, I do not believe that

disclosure of the CI is required pursuant to the Payne factors and,

therefore, I would not remand for the trial court to consider the issues

surrounding the CI’s safety.

       I also cannot agree with the Majority’s conclusion that the trial court

erred in holding that Ms. Marinkov was an alibi witness and that Appellant’s

failure to provide notice to the Commonwealth barred admission of her

testimony.2 At trial, Appellant offered testimony from Ms. Marinkov to show

that “at the time in question, she was using drugs and that she would drive

[Appellant’s] car for other individuals, not [Appellant], to sell narcotics.” Id.

at 9, citing N.T., 6/10/15, at 43-44.          The Majority reasons that since Ms.
____________________________________________


2
  Under Pa.R.Crim.P. 567, notice of an alibi defense must be filed no later
than the time required for filing an omnibus pretrial motion pursuant to Rule
579. Pa.R.Crim.P. 567(A). The notice must specify the intention to offer an
alibi defense and “shall contain specific information as to the place or places
where the defendant claims to have been at the time of the alleged offense
and the names and addresses of the witnesses whom the defendant intends
to call in support of the claim.” Pa.R.Crim.P. 567(A)(2). Failure to supply
the required notice (or failure to identify an alibi witness) qualifies as
grounds to refuse admission of the evidence (or witness) relating to the
defense, other than testimony by the defendant. Pa.R.Crim.P. 567(B)(1)
and (2).




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Marinkov’s testimony did not place Appellant at a particular location at the

time of the instant offense, she did not constitute an alibi witness for whom

notice was required.       Id. The Majority also suggests that the trial court’s

exclusion of Ms. Marinkov’s testimony improperly interfered with Appellant’s

opportunity to develop a mistaken identity defense.3 Id. Pennsylvania case

law, however, contemplates that an alibi witness includes one who puts a

defendant in a place other than the crime scene at a particular time. See

Commonwealth v. Roxbury, 602 A.2d 826, 827 (Pa. 1992) (“The

long-accepted definition of alibi is a defense that places the defendant at the

relevant time in a different place than the scene involved and so removed

therefrom as to render it impossible for him to be the guilty party.”)

(citations and internal quotations omitted).4       Because Ms. Marinkov was

____________________________________________


3
  To be clear, my belief is that if Ms. Marinkov testifies that on the date and
time in question, she drove an individual other than Appellant to the
transaction at issue, then Ms. Marinkov is both an alibi witness and a witness
whose testimony could support a mistaken identity defense. I disagree with
the implied premise underlying the Majority’s conclusion that Ms. Marinkov is
either an alibi witness or a witness whose testimony supports mistaken
identity. Put differently, if Ms. Marinkov is offered to establish mistaken
identity, then her testimony necessarily will be used in support of an alibi
defense, and vice versa.
4
  In applying this definition, the Court in Roxbury observed that, “There is
no minimum or threshold quantum of physical separation necessary for a
defense to constitute an alibi, so long as the separation makes it impossible
for the defendant to have committed the crime.” Roxbury, 602 A.2d at
828.   Here, Ms. Marinkov’s testimony would be offered to show that
Appellant was not the passenger in the vehicle she drove to the transaction
site, making it impossible for Appellant to have delivered the drugs to the
(Footnote Continued Next Page)


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offered to prove that Appellant was not present at the underlying

transaction, I believe she qualified as an alibi witness and that the trial court

correctly applied Pennsylvania law in refusing to admit her testimony.

Accordingly, I see no reason to disturb the trial court’s ruling.5

        For each of the foregoing reasons, I concur, in part, and dissent, in

part.




                       _______________________
(Footnote Continued)

CI. For purposes of determining whether Ms. Marinkov qualified as an alibi
witness, her failure or inability to place Appellant at a particular distant
location is irrelevant.
5
  Leaving aside my disagreement with the Majority’s conclusion that Ms.
Marinkov is not an alibi witness, I agree that the vagueness of Appellant’s
proffer requires further exploration regarding the potential relevance of Ms.
Marinkov’s testimony. See Majority Memorandum at 9-10 (remanding for
examination of relevance of Ms. Marinkov’s testimony). If Ms. Marinkov
cannot say that she transported another individual to the transaction at
issue, then her proffered testimony has no conceivable relevance to the
issues in this case.



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