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NON-PRECEDENTIAL DECISION                  - SEE SUPERIOR COURT I.O.P.       65.37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

MICHAEL WILLIE,                                          No. 2295 EDA 2017

                             Appellant


              Appeal from the Judgment of Sentence, June 2, 2017,
               in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No. CP-51-CR-0009512-2015


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED AUGUST 12, 2019

         Michael Willie appeals from the June 2, 2017 judgment of sentence of

four to eight years' imprisonment, with credit for time -served, imposed after

he was found     guilty in   a   bench trial of one count of persons not to possess,

use, manufacture, control, sell or transfer firearms ("unlawful possession of      a


firearm").1 After careful review, we affirm the judgment of sentence.

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

               On July 15, 2015, an anonymous        informant called
               Officer Richard Fitzgerald ("Fitzgerald") and offered
               information regarding a man (later identified as
               [a]ppellant) who was selling heroin. The informant
               provided Fitzgerald with seller's nickname and cell
               phone number. On July 20, 2015, the informant
               agreed to introduce Fitzgerald to [a]ppellant so that
               Fitzgerald could conduct a controlled buy. On that
               date, Fitzgerald and the informant drove an unmarked

1    18 Pa.C.S.A. § 6105(a)(1).
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            vehicle to the 3200 block of Frankford Avenue.
            Shortly after they arrived, [a]ppellant approached the
            vehicle, engaged in a brief conversation, and entered
            the back of the car behind the passenger's seat.
            Fitzgerald testified that after [a]ppellant entered the
            vehicle, Fitzgerald paid him with $200 of prerecorded
            money and, in return, received two bundles which
            consisted of 26 packets of heroin.          During the
            transaction, other officers conducted surveillance of
            the surrounding area.         Officer Timothy Bogan
            ("Bogan") testified that on July 20, 2015, he observed
            [a]ppellant approach and enter Fitzgerald's vehicle
            but did not witness the actual sale.

            After the sale, Fitzgerald left, and backup officers
            continued surveilling the area.     Officers followed
            [a]ppellant to a carwash garage on 3310 Amber
            Street. Appellant was in and [out] of the garage a
            couple times, then moved towards the 1800 block of
            Tioga Street. At some point, [a]ppellant noticed the
            officers and ran into the residence at 1849 E. Tioga.
            Later that day, Fitzgerald turned over the purchased
            packets to Bogan, who conducted a ["]NIK test A
            and L" and confirmed that the packets contained
            heroin. That same day, Bogan submitted an Affidavit
            of Probable Cause for a search warrant.

            On July 21, Fitzgerald called the seller and attempted
            to set up a second purchase. The seller instructed
            Fitzgerald to return to the 3200 block of Frankford
            Avenue. However, before the officer could complete
            the purchase, the seller informed him that the supplier
            providing the drugs for sale was not available and the
            drugs were not ready. That same day, Bogan and
            other officers continued surveillance of 1849 E. Tioga
            Street and observed [a]ppellant sitting on the front
            porch of the residence. On July 22, Fitzgerald called
            the seller several times but was told that the drugs
            were still not available.

            Surveillance of the Amber Street garage continued on
            July 23, where officers observed [a]ppellant
            repeatedly enter and exit the premises. Around
            3:00 P.M., officers executed valid search warrants for

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               the properties     at 3310 Amber Street and
               1849 E. Tioga Street.        The officers arrested
               [a]ppellant outside of the Amber Street garage and
               recovered a set of keys and a cell phone from his
               person. After seizing [a]ppellant's phone, Fitzgerald
               called the seller's number.     Fitzgerald and Bogan
               watched [a]ppellant's phone and saw it ring; the
               phone displayed Fitzgerald's number as the source of
               the incoming call. It was later discovered that one of
               the keys recovered from [a]ppellant matched the
               1849 E. Tioga residence.

               Upon searching      the 3310 Amber Street garage,
               officers recovered $51 from the cash register, $219
               from the rear room, and a .38 caliber revolver from a
               sewer line in the garage.       Upon searching the
               1849 E. Tioga     residence, officers recovered a
               .9[ -]millimeter handgun   from a storage bin inside
               [a]ppellant's bedroom closet. The handgun was
               loaded with one round in the chamber and eight in the
               magazine. Officers also recovered a residential lease
               agreement from the bedroom closet.         The lease
               described the 1849 E. Tioga Street residence and
               named [a]ppellant and Sabrina Morrison as the
               tenants of that residence.

Trial court opinion, 9/20/18 at 2-4 (footnotes, internal quotation marks, and

citations to notes of testimony omitted).

         Appellant was arrested in connection with this incident and charged with

possession of     a   controlled substance, possession with intent to deliver       a


controlled substance, unlawful possession of     a   firearm, and criminal use of   a


communication facility.2      On January 19, 2017, appellant filed a       pre-trial




2    35 P.S. §§ 780-113(a)(16) and (a)(30), and 18 Pa.C.S.A. §§ 6105(a)(1) and
7512(a), respectively.

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motion to compel disclosure of the confidential informant's ("CI") identity.3

Following     a   hearing, the trial court denied appellant's motion on June 2, 2017.

(Notes of testimony, 6/2/17 at 42.) Appellant subsequently waived his right

to    a   jury and proceeded to       a   bench trial that same day.   (Id. at 43-44.) At
the waiver trial, the parties stipulated to the fact that appellant was prohibited

from possessing          a   firearm due to his 2003 burglary4 conviction. (Id. at 63.)

Additionally, the trial court clarified that it was not considering the firearm

found at the 3310 Amber Street location. (Id. at 64.) At the conclusion of

the one -day bench trial, the trial court found appellant guilty of unlawful

possession of        a   firearm; appellant was found not guilty of the remaining

charges. (Id. at 66.) As noted, the trial court sentenced appellant to 4 to 8

years' imprisonment, with credit for time -served, on June 2, 2017.               (Id. at
72; see also trial court sentencing order, 6/2/17.) Appellant did not file any

post -sentence motions. This timely appeal followed.5




3 Officer Fitzgerald testified that the CI began the process of registering with

the Philadelphia Police Department, but never completed the registration
because of his/her concerns about their "general safety with continuing their
life in the community[.]" (Notes of testimony, 6/2/17 at 11-12.)

4    18 Pa.C.S.A. § 3502.

5    On August 3, 2017, the    trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days.          Appellant failed to file a timely
Rule 1925(b) statement, and on December 11, 2017, the trial court filed an
opinion finding all of appellant's issues waived. On May 10, 2018, this court
entered a per curiam order dismissing appellant's appeal for failure to file a
brief; appellant's appeal was subsequently reinstated by this court on May 18,

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       Appellant raises the following issues for our review:

             1.    Whether the trial court abused its discretion in
                   denying [a]ppellant's motion for disclosure of
                   [the CI's] identity, because [a]ppellant's
                   request for disclosure of the CI's identity was
                   reasonable and material to [a]ppellant's
                   defense, since [a]ppellant's defense was
                   predicated on impeaching undercover officer's
                   allegation that [a]ppellant made undercover
                   drug sale and the [CI] and undercover police
                   officer were the only witnesses alleged by the
                   Commonwealth that were present during the
                   alleged controlled drug sale?

             2.    Whether the trial court abused its discretion in
                   finding    [a]ppellant   guilty of      [unlawful
                   possession of a firearm], where      there   was
                   insufficient   evidence    to   establish    that
                   [a]ppellant was in constructive possession of
                   firearm recovered inside his home, where
                   [a]ppellant was never observed in actual
                   possession of the firearm by the Commonwealth
                   police witnesses and there was another person
                   in dwelling where firearm was recovered who
                   had equal access to the firearm and was as
                   capable as [a]ppellant of exercising dominion
                   and control over the gun?

             3.    Whether the trial court abused its discretion in
                   finding    [a]ppellant  guilty of      [unlawful
                   possession of a firearm], where two firearms
                   were recovered pursuant to execution of search
                   and seizure at two separate North Philadelphia
                   locations, 1849 Tioga Street and 3310 Amber
                   Street, [a]ppellant was found guilty only of
                   possessing firearm recovered from dwelling at
                   1849 Tioga Street, [a]ppellant was only charged
                   with one count of 6105, and the Bill of
                   Particulars did not specify which firearm
                   [a]ppellant was charged with possessing?

2018. On August 26, 2018, appellant filed a timely Rule 1925(b) statement,
and the trial court filed its Rule 1925(a) opinion on September 20, 2018.


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Appellant's brief at 6.

         Appellant first argues that the trial court abused its discretion in denying

his motion to compel disclosure of the CI.        (Id. at 13.) Specifically, appellant
avers that,

               disclosure of the CI's identity was reasonable and
               material to appellant's defense, since [it] was
               predicated on impeaching [Officer Fitzgerald's]
               allegation that appellant made undercover drug sale
               and the [CI] and [Officer Fitzgerald] were the only
               witnesses alleged by the Commonwealth to be present
               during the alleged controlled drug sale.

Id. (full capitalization omitted).    For the following reasons, we disagree.

         "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 governs pretrial discovery

and inspection and provides that      a   trial court has the discretion to require the

Commonwealth to reveal the names and addresses of all eyewitnesses,

including CIs, where      a   defendant establishes that the information sought       is

material to the preparation of the defense and that the request         is   reasonable.

Rule 573 provides, in relevant part, as follows:

                (a)   In all court cases, except as otherwise provided
                      in Rules 230 (Disclosure of Testimony Before
                      Investigating Grand Jury) and 556.10 (Secrecy;
                      Disclosure), if the defendant files a motion for
                      pretrial discovery, the court may order the


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                   Commonwealth to allow the defendant's
                   attorney to inspect and copy or photograph any
                   of the following requested items, upon a
                   showing that they are material to the
                   preparation of the defense, and that the request
                   is reasonable:

                   (i)    the     names    and   addresses   of
                          eyewitnesses[.]

Pa.R.Crim.P. 573(B)(2)(a)(i).

       When considering    a    claim under Rule 573(B), we are mindful of the

following:

             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.

             In striking the proper balance, the court must consider
             the following principles:

                   A  further limitation on the applicability of
                   the privilege arises from the fundamental
                   requirements of fairness.       Where the
                   disclosure of an informer's identity, or of
                   the contents of his communication, is
                   relevant and helpful to the defense of an
                   accused, or is essential to a fair
                   determination of a cause, the privilege
                   must give way. In these situations[,] the
                   trial court may require disclosure and, if

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                    the    Government        withholds       the
                    information, dismiss the action.

                    [N]o fixed rule with respect to disclosure
                    is justifiable. The problem is one that calls
                    for balancing the public interest in
                    protecting the flow of information against
                    the individual's right to prepare his
                    defense.       Whether a proper balance
                    renders nondisclosure erroneous must
                    depend on the particular circumstances of
                    each case, taking into consideration the
                    crime charged, the possible defenses, the
                    possible significance of the informer's
                    testimony, and other relevant factors.

Commonwealth v. Koonce, 190 A.3d 1204, 1209 (Pa.Super. 2018)
(citations omitted).

        Upon review, we conclude that appellant failed to establish that the

disclosure of the CI's identity was material to his case or reasonable under the

circumstances. The record reflects that the CI's involvement in this matter

was limited to the drug -related charges for which the trial court ultimately

found appellant not guilty. The CI was never present in appellant's bedroom

where the .9 -millimeter handgun was found, and there exists no evidence to

establish that anything the CI could have testified to would have aided in

appellant's defense of the firearm charge. As recognized by the trial court,

Officer Fitzgerald personally observed appellant engaging in drug transactions

that resulted    in the search of his 1849 E. Tioga      Street residence and the

subsequent discovery of the firearm:

             [Officer] Fitzgerald testified that on July 20, 2015, he
             personally exchanged $200 of prerecorded money

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              with [a]ppellant in return for twenty-six packets of
              heroin.      Fitzgerald's testimony is not wholly
              uncorroborated. [Officer] Bogan testified that on
              July 20, 2015, he observed [a]ppellant approach and
              enter Fitzgerald's unmarked vehicle. Later that day,
              the packets purchased by Fitzgerald were given to
              Bogan, who conducted a "NIK test A and L" and
              confirmed that the packets contained heroin. Finally,
              when [a]ppellant was arrested, a cell phone was
              recovered from his person. At that time, Fitzgerald
              called the number that he used throughout the course
              of the investigation. Fitzgerald and Bogan watched as
              [a]ppellant's phone rang and displayed Fitzgerald's
              number as the source of the incoming call. These
              facts do not indicate that revealing the informant's
              identity would have been material or even helpful to
              [a]ppellant, and, other than the assertion that the
              informant would have been an "impartial witness,"
              [a]ppellant offered no evidence to the contrary.

Trial court opinion, 9/20/18 at 7-8.

        Based on the foregoing, we discern no abuse of discretion on the part

of the trial court in denying appellant's motion to compel disclosure of the CI

in   this matter.

        Appellant next argues that there was insufficient evidence to sustain his

conviction for unlawful possession of    a   firearm because the Commonwealth

failed to prove that he "was in constructive possession of [the] firearm

recovered inside his home [at 1849          E.   Tioga Street]."   (Appellant's brief

at 17.) In support of this claim, appellant avers that he

              was never observed in actual possession of the
              firearm by the Commonwealth police witnesses and
              there was another person in [the]dwelling where
              firearm was recovered who had equal access to the
              firearm and was as capable as appellant of exercising
              dominion and control over the gun.


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Id. (full capitalization omitted).
        Our standard of review of sufficiency claims is well settled:

              In reviewing the sufficiency of the evidence, we must
              determine whether the evidence admitted at trial and
              all reasonable inferences drawn therefrom, viewed in
              the light most favorable to the Commonwealth as
              verdict winner, is sufficient to prove every element of
              the offense beyond a reasonable doubt.           As an
              appellate court, we may not re -weigh the evidence
              and substitute our judgment for that of the
              fact -finder.   Any question of doubt is for the
              fact -finder unless the evidence is so weak and
              inconclusive that as a matter of law no probability of
              fact can be drawn from the combined circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations
omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

       The offense of unlawful       possession of   a       firearm   is   set forth in

Section 6105 of the Crimes Code and provides, in relevant part, as follows:

              (a)   Offense defined. --

                    (1)   A person who has been convicted of an
                          offense enumerated in subsection (b),
                          within or without this Commonwealth,
                          regardless of the length of sentence or
                          whose conduct meets the criteria in
                          subsection (c) shall not possess, use,
                          control, sell, transfer or manufacture or
                          obtain a license to possess, use, control,
                          sell, transfer or manufacture a firearm in
                          this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).

        In situations where it cannot be proven that     a   suspect had the firearm

on his person, as is the case here, the Commonwealth is required to prove


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constructive possession.         Commonwealth v. Hopkins, 67 A.3d 817, 820
(Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).

                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.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012) (citations
and internal quotation marks omitted),            appeal denied, 63 A.3d 1243       (Pa.

2013). As with any other element of          a   crime, the Commonwealth may sustain

its    burden     of proving     constructive      possession   by   means    of wholly

circumstantial evidence, and the requisite intent may be inferred from

examination of the totality of the circumstances. Hopkins, 67 A.3d at 820.

        Viewing the evidence in the light most favorable to the Commonwealth

as the    verdict winner, we conclude that there was sufficient circumstantial

evidence to establish that appellant constructively possessed the firearm

recovered from 1849        E.   Tioga Street.     At trial, Officer Bogan testified that

during    a   search of the 1849    E.   Tioga Street residence, officers recovered    a


loaded, semiautomatic .9 -millimeter Luger handgun inside                a   storage bin

located in appellant's bedroom closet. (Notes of testimony, 6/2/17 at 56-57.)6


6As noted, the parties stipulated that appellant had a prior felony burglary
conviction enumerated in 18 Pa.C.S.A. § 6105(b) that prohibited him from
possessing a firearm. (Notes of testimony, 6/2/17 at 63.)
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Officer Bogan's testimony           further established    that    a   residential     lease

agreement identifying appellant and his girlfriend, Sabrina Morrison, as

lessees of the 1849   E.   Tioga Street property was found in the bedroom closet

where the firearm was recovered. (Id. at 56, 59-60.) Contrary to appellant's

contention, "the fact that [] Morrison may have had joint access [to the

bedroom where the firearm was found] does not mitigate [a]ppellant's

conscious dominion over and ability to control the firearm."                   (Trial court

opinion, 9/20/18 at 10.)       It   is   well settled that "two actors may have joint

control and equal access [to contraband] and thus both may constructively

possess the contraband."       Commonwealth v. Bergen, 142 A.3d 847, 851
(Pa.Super. 2016) (citation omitted).

        Based    on the foregoing, we agree with the trial court that the

Commonwealth presented sufficient evidence, based upon the totality of the

circumstances, that appellant possessed "the power to control the [handgun]

and the intent to exercise that control."             See Brown, 48 A.3d at 430;

Hopkins, 67 A.3d at 820. Accordingly, appellant's sufficiency claim must fail.
        In his final claim, appellant argues that he        is   entitled to   a   new trial

because "the Bill of Particulars did not specify which firearm [a]ppellant was

being charged with [possessing], the .9 millimeter recovered incident to the

search of 1849 [E.] Tioga Street, or the .38 caliber revolver [] found incident

to the search warrant at 3310 Amber Street." (Appellant's brief at 22.)




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        "A bill of particulars       is   intended to give notice to the accused of the

offenses charged in the indictment so that the accused may prepare a defense,

avoid   a   surprise, or intelligently raise pleas of double jeopardy and the statute

of limitations." Commonwealth v. Mercado, 649 A.2d 946, 959 (Pa.Super.

1994) (citation omitted). This court has held that "a defendant waives any

objection to     a    bill of particulars furnished by the Commonwealth when he or

she fails to file      a    timely motion pursuant to Pennsylvania Rule of Criminal

Procedure 572(C)." Commonwealth v. Libengood, 152 A.3d 1057, 1058

(Pa.Super. 2016), appeal denied, 169 A.3d 1045 (Pa. 2017).

        Rule 572 provides, in relevant part, as follows:

                (A)        A request for a bill of particulars shall be served
                           in writing by the defendant upon the attorney
                           for the Commonwealth within 7 days following
                           arraignment. The request shall promptly be filed
                           and served as provided in Rule 576.

                (B)        The   request shall set forth the specific
                           particulars sought by the defendant, and the
                           reasons why the particulars are requested.

                (C)        Upon failure or refusal of the attorney for the
                           Commonwealth to furnish a bill of particulars
                           after service of a request, the defendant may
                           make written motion for relief to the court
                           within 7 days after such failure or refusal. If
                           further particulars are desired after an original
                           bill of particulars has been furnished, a motion
                           therefor may be made to the court within 5 days
                           after the original bill is furnished.



Pa.R.Crinn.P. 572(A) -(C).



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          Here, the record reflects that appellant failed to file   a   Rule 572 motion

for   a   bill of particulars within the seven-day timeframe.           Accordingly, any

challenge appellant may have had with regard to the specificity of the

Commonwealth's bill of particulars       is   waived.7

          Based on the foregoing, we affirm the trial court's June 2, 2017

judgment of sentence.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 8/12/19




  To the extent that appellant's argument is construed as a challenge to the
bill of information, we find that this claim would also fail. Bills of information
are governed by the Pennsylvania Rules of Criminal Procedure, which require
that they include "a plain and concise statement of the essential elements of
the offense substantially the same as or cognate to the offense alleged in the
complaint[.]" Pa.R.Crim.P. 560(6)(5). Additionally, Rule 560(C) provides that
"[t]he information shall contain the official or customary citation of the statute
and section thereof, or other provision of law that the defendant is alleged
therein to have violated; but the omission of or error in such citation shall not
affect the validity or sufficiency of the information." Pa.R.Crim.P. 560(C).
Here, we agree with trial court's findings that the bill of information in this
case provided appellant with sufficient notice of his charges. (See trial court
opinion, 9/20/18 at 10-12.)

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