J-S81039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    TERRANCE LAMONT EDMONDS,

                             Appellant                 No. 897 MDA 2017


              Appeal from the Judgment of Sentence May 5, 2017
                 in the Court of Common Pleas of York County
              Criminal Division at Nos.: CP-67-CR-0001412-2016
                           CP-67-CR-0003899-2016


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 08, 2018

        Appellant, Terrance Lamont Edmonds, appeals from the judgment of

sentence imposed following his jury conviction of possession with intent to

deliver a controlled substance and delivery of a controlled substance, at the

above-listed docket numbers.1 We affirm.

        The trial court aptly set forth the facts and procedural history of this

case in its August 14, 2017 opinion2 as follows:

              On October 27, 2015, the York County Drug Task Force and
        the West Manchester Township Police Department conducted a
        drug investigation focused on [Appellant]. On that date, Officer
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).

2   See Pa.R.A.P. 1925(a).
J-S81039-17


       Adam Bruckhart, a police officer with West Manchester Township
       who is employed full time as a special detective with York County
       Drug Task Force, utilized a confidential informant (CI) in the
       course of the drug investigation to engage in a controlled purchase
       of heroin from [Appellant]. Using official funds, Officer Bruckhart
       and Officer [Patrick] Gartrell supplied the confidential informant
       with two-hundred dollars ($200.00) and the CI engaged in a
       controlled delivery where [Appellant] supplied the CI with over
       twenty (20) bags of heroin, or two bundles of the drug. During
       the controlled buy, [O]fficer Bruckhart observed [Appellant’s]
       vehicle, a white Chevrolet pickup truck. At the conclusion of the
       controlled buy, Officer Bruckhart followed [Appellant] three (3) to
       four (4) blocks to the Smoker’s Outlet, located in Spring Garden
       Township, where he and several other officers initiated an arrest
       of [Appellant]. However, before taking [Appellant] into custody,
       Officer Bruckhart observed another individual[, Justin Huson,3]
       standing at the passenger side window of [Appellant’s] truck with
       cash in hand, supposedly buying drugs from [Appellant]. In the
       process of arresting [Appellant], Officer Bruckhart observed a soft,
       lunch box sized, cooler by [Appellant’s] feet which contained
       [eighty-seven bags] of heroin. After pulling him from his truck,
       Officer Bruckhart searched [Appellant] and found two cell phones,
       and the two-hundred dollars ($200.00) of official funds used
       during the controlled buy. Following his arrest, [Appellant] was
       charged with the above listed offenses.[4]

             On March 2[2], 2017, following the conclusion of a jury trial,
       the jury unanimously found [Appellant] guilty of both possession
       with the intent to deliver heroin and [delivery] of heroin. On May
       5, 2017, in case 1412-2016, [Appellant] was sentenced to three
       and one-half (3 1/2) years to seven (7) years’ incarceration, and
       in case 3899-2016, [Appellant] was sentenced to a term of three
       (3) to six (6) years’ incarceration, to run consecutive to the
       sentence imposed in 1412-2016.


____________________________________________


3Justin’s surname also appears as “Hewson” in the record; we have taken the
predominant spelling.

4 Relevant to the instant appeal, Appellant filed a motion to suppress evidence
in case 1412-2016, and a motion to disclose the identity of the CI in case
3899-2016. The trial court denied both motions on October 5, 2016, following
a hearing.

                                           -2-
J-S81039-17


             On May 30, 2017, [Appellant], by and through his attorney,
      Richard Robinson, Esquire, filed a timely notice of appeal. On June
      6, 2017, this court directed [Appellant] to file a concise statement
      of errors complained of on appeal pursuant to [Pa.R.A.P.]
      1925(b), giving [him] twenty-one (21) days after the entry of the
      order to file his response. On June 22, 2017, [Appellant] timely
      filed his statement of matters complained of on appeal. . . .

(Trial Court Opinion, 8/14/17, at 2-4) (record citations and some capitalization

omitted).

      Appellant raises the following issues for our review:

      I. Whether the honorable trial court erred in denying Appellant’s
      motion to suppress in case 1412 CA 2016 on the following
      grounds: the arrest and subsequent search and seizure of the
      Appellant and his property was illegal; arresting officers did not
      have sufficient probable cause to arrest the Appellant and
      subsequently conduct a search of the Appellant and his property;
      the confidential informant was not established to be a reliable
      confidential informant in that there was nothing stated in the
      affidavit or at the hearing about prior information provided by the
      confidential informant which led to arrests and convictions; the
      officers did not engage in any investigation to corroborate the
      information provided by the confidential informant[?]

      II. Whether the honorable trial court erred in denying Appellant’s
      motion to disclose identity of confidential informant in case
      number 3899 CA 2016 on the following grounds: none of the
      police officers involved, or any other witnesses, observed what
      transpired between the Appellant and the confidential informant;
      as a result, the confidential informant would be the only witness
      which the Appellant should have been entitled to cross examine;
      the overall evidence in the case involved the questionable
      reliability of the confidential informant which made it imperative
      that the Appellant have an opportunity to examine the confidential
      informant or at [] least interview prior to trial; none of the alleged
      conversations between the Appellant and confidential informant
      were recorded or preserved which made it imperative that
      Appellant examine the confidential informant or at least interview
      the confidential informant prior to trial[?]




                                      -3-
J-S81039-17


       III. Whether the honorable trial court erred in overruling defense
       counsel’s objection to testimony of Commonwealth witness Cyle
       Kennell about hearsay conversations with another individual
       concerning the purchase of heroin which did not fall into the co-
       conspirator exceptions[?]

(Appellant’s Brief, at 4) (most capitalization omitted).

       Appellant first challenges the trial court’s denial of his motion to

suppress, arguing that the police lacked sufficient probable cause to arrest

him.   (See id. at 10-13).     He contends that the Commonwealth failed to

establish the reliability of the CI where the information the CI provided was

not corroborated by any independent police investigation. (See id.). This

issue does not merit relief.

       Our standard of review of claims challenging the denial of a suppression

motion is as follows:

                   We may consider only the Commonwealth’s
             evidence and so much of the evidence for the defense
             as remains uncontradicted when read in the context
             of the record as a whole. Where the record supports
             the factual findings of the trial court, we are bound by
             those facts and may reverse only if the legal
             conclusions drawn therefrom are in error.             An
             appellate court, of course, is not bound by the
             suppression court’s conclusions of law.

            In reviewing questions of law, our standard of review is de
       novo and our scope of review is plenary.

Commonwealth v. Livingstone, 174 A.3d 609, 618–19 (Pa. 2017) (citations

omitted).

       “[A]ppellate courts are limited to reviewing only the evidence presented

at the suppression hearing when examining a ruling on a pre-trial motion to

suppress.” Commonwealth v. Bush, 166 A.3d 1278, 1281–82 (Pa. Super.

                                      -4-
J-S81039-17



2017) (citation omitted). “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.” Id. at 1282 (citation omitted).

            The existence of probable cause for an arrest is assessed by
      using the following principles:

                  Probable cause to arrest exists when the facts
            and circumstances within the police officer’s
            knowledge and of which the officer has reasonably
            trustworthy information are sufficient in themselves to
            warrant a person of reasonable caution in the belief
            that an offense has been committed by the person to
            be arrested. Probable cause justifying a warrantless
            arrest is determined by the totality of the
            circumstances.

            . . . It is the facts and circumstances within the personal
      knowledge of the police officer that frames the determination of
      the existence of probable cause.

Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa. Super. 2013), aff’d, 105

A.3d 656 (Pa. 2014) (citations and emphasis omitted).

      “The question we ask is not whether the officer’s belief was correct or

more likely true than false. Rather, we require only a probability, and not a

prima facie showing, of criminal activity.”   Bush, supra at 1283 (citation

omitted).

      “[A] determination of probable cause based upon information received

from a confidential informant depends upon the informant’s reliability and

basis of knowledge viewed in a common sense, non-technical manner.”

Commonwealth v. Gagliardi, 128 A.3d 790, 795 (Pa. Super. 2015) (citation

omitted). Information provided by a CI “may constitute probable cause where


                                     -5-
J-S81039-17



police independently corroborate the [information], or where the informant

has provided accurate information of criminal activity in the past, or where

the informant himself participated in the criminal activity.”   Id. at 795-96

(citation omitted).

      In this case, the trial court found the testimony of Officers Bruckhart

and Gartrell credible, and the information provided by the CI reliable. (See

Trial. Ct. Op., at 9-10). It denied Appellant’s suppression motion based upon

the following facts, which are supported by the testimony at the suppression

hearing:

            On October 27, 2015, Officer Bruckhart stated that he had
      made contact with a confidential informant regarding a controlled
      buy. Officer Bruckhart, whom this [c]ourt found credible, had
      previously worked with this CI and this CI had provided
      information on more than five (5) occasions. The information
      previously provided by the CI had assisted Officer Bruckhart in
      making felony drug arrests. Officer Bruckhart found this CI to be
      credible. Officer Bruckhart testified that he met with the CI and
      the CI provided information about [Appellant]. Particularly, the
      CI stated that [Appellant], known in the community as Jazz, drives
      around in a white Chevrolet pickup truck and always has heroin in
      the vehicle. Based on that information, Officer Bruckhart and the
      CI agreed to perform a controlled purchase of heroin from
      [Appellant].    Through text messages, the CI set up the
      transaction. After the CI set up the transaction, Officer Bruckhart
      arranged with Officer Patrick Gartrell to control the CI and he,
      Officer Bruckhart, would perform surveillance.

                                  *    *    *

      . . . Officer Gartrell stated that he met with the CI prior to the
      controlled buy and searched the CI prior to the interaction with
      [Appellant] to confirm that the CI was free of any drugs, money,
      or contraband. After doing so, Officer Gartrell provided the CI
      with two-hundred dollars ($200) in official funds, which were


                                      -6-
J-S81039-17


      photocopied before they were given to the CI, to use for
      purchasing the heroin.

            Officer Gartrell testified that he witnessed the CI make
      contact with [Appellant], both by observing the CI on their cell
      phone with [Appellant] and by texting with [Appellant] for the
      purpose of arranging the controlled buy. Eventually, the CI and
      Officer Gartrell moved to the location in which [the CI] was to
      meet [Appellant]. At that location, Officer Gartrell kept the CI
      under continuous surveillance. Officer Gartrell stated that when
      [Appellant] arrived in his truck, the CI walked up to [Appellant’s]
      truck and got in. Less than a minute later, [] Officer Gartrell
      observed the CI get out of [Appellant’s] truck and the CI started
      to walk back to where Officer Gartrell was stationed.

             The CI returned to Officer Gartrell’s vehicle and handed
      Officer Gartrell a quantity of heroin that he had just purchased
      from [Appellant]. The CI informed Officer Gartrell that [he] had
      observed an additional amount of heroin under the driver’s side
      seat in [Appellant’s] truck. The CI also stated that [Appellant]
      was heading to the Smoker’s Outlet, which was not far from their
      current location, to conduct a heroin transaction with another
      individual.

            . . . [T]he officers followed [Appellant] to the Smoker’s
      Outlet where he was seen providing another individual with
      heroin, and was subsequently arrested.

(Id. at 6-8) (record citations omitted).

      Thus, the record reflects that Officer Bruckhart had worked with this CI

on five occasions in the past, and that the information the CI provided was

reliable in that it led to felony drug arrests. (See N.T. Suppression Hearing,

10/05/16, at 14). Officer Gartrell personally observed the CI make contact

with Appellant via text messages and a phone call to arrange the controlled

heroin purchase. (See id. at 4-5). During execution of the controlled buy,

the officer accompanied the CI to the agreed-upon location, and kept him

under continuous surveillance. (See id. at 5-6). Less than one minute after

                                     -7-
J-S81039-17



the CI entered Appellant’s vehicle, he returned to Officer Gartrell with a

quantity of heroin, and information that Appellant had additional heroin in his

vehicle and was on his way to conduct another heroin delivery at a nearby

location.   (See id. 6-7).     The officers corroborated this information by

following Appellant to the specified location, where they observed Justin

Huson approach Appellant’s truck with money in his hands to conduct an

apparent drug transaction. (See id. 16-17).

      Based on the foregoing, viewing the totality of the circumstances, we

conclude that police had ample probable cause to arrest Appellant.         See

Weaver, supra at 565.        The information from the CI, (who had provided

accurate information of criminal activity in the past,) as substantiated by the

experienced narcotics officers’ direct observation of the conduct of Appellant

and the CI, was sufficient to warrant a person of reasonable caution to believe

that Appellant was selling drugs at that time. See id.; Gagliardi, supra at

795–96. Appellant’s first issue merits no relief.

      Appellant next challenges the trial court’s denial of his motion seeking

disclosure of the CI’s identity. (See Appellant’s Brief, at 13-15). Appellant

maintains that because the CI’s reliability and credibility were in question, he

should have had the opportunity to confront the CI. (See id. at 13, 15). He

claims that the CI’s testimony was necessary to prepare his defense where

the CI was the only eyewitness to the alleged transaction, and there could

have been valid reasons for him to meet with the CI. (See id.). This issue

lacks merit.

                                     -8-
J-S81039-17



      “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. Watson, 69 A.3d 605, 607 (Pa. Super.

2013) (citation omitted).

            Under Pennsylvania Rule of Criminal Procedure 573, a trial
      court has the discretion to require the Commonwealth to reveal
      the names and addresses of all eyewitnesses, including
      confidential informants, where a defendant makes a showing of
      material need and reasonableness:

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

              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:



                                        -9-
J-S81039-17


                   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 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. Marsh, 997 A.2d 318, 321–22 (Pa. 2010) (case citations

omitted).

     Regarding the threshold inquiry of materiality and reasonableness, this

Court has explained:

            . . . The defendant need not predict exactly what the
     informant will say, but he must demonstrate a reasonable
     possibility the informant could give evidence that would exonerate
     him. More than a mere assertion that disclosure of the informant’s
     identity might be helpful is necessary. Only after this threshold
     showing that the information is material and the request
     reasonable is the trial court called upon to determine whether the
     information is to be revealed.

Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (citations

omitted).




                                     - 10 -
J-S81039-17



      Here, the trial court determined that Appellant failed to meet the

threshold burden. (See Trial Ct. Op., at 12-14). Upon review, we agree.

      We first note our disagreement with Appellant’s contention that the CI’s

reliability and credibility were in question. As discussed at length above, the

CI’s trustworthiness was established through the credible testimony of Officers

Bruckhart and Gartrell, who gained valuable information from the CI in the

past, and substantiated information the CI provided regarding Appellant

through personal observation.

      Furthermore, Appellant fails to “demonstrate a reasonable possibility the

[CI] could give evidence that would exonerate him[,]” or raise “[m]ore than a

mere assertion that disclosure of the [CI’s] identity might be helpful[.]”

Belenky, supra at 488 (citations omitted). In his brief, Appellant merely

makes the bald, vague assertion that: “there could have been other legal

reasons for the CI and Appellant to meet,” and “[t]here could have been other

reasons that the CI was in contact and had arranged to meet.” (Appellant’s

Brief, at 13, 15). Appellant likewise fails to offer a cogent explanation of how

the CI’s testimony could have aided in his defense, in light of his possession

of eighty-seven bags of heroin at the time of his arrest.       (See N.T. Trial,

3/21/17, at 78). Given the lack of support for disclosure, we discern no abuse

of discretion in the trial court’s ruling against it. See Watson, supra at 607.

      In Appellant’s final issue, he argues the trial court erred in permitting

Commonwealth      witness   Cyle   Kennell    to   testify   regarding   hearsay




                                     - 11 -
J-S81039-17



conversations he had with Justin Huson, concerning the purchase of heroin.

(See Appellant’s Brief, at 15-18). This issue does not merit relief.

      “Our standard of review relative to the admission of evidence is for an

abuse of discretion.”   Commonwealth v. Feliciano, 67 A.3d 19, 27 (Pa.

Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

      “Hearsay is defined as a statement that: (1) the declarant does not

make while testifying at the current trial or hearing; and (2) the party offers

in evidence to prove the truth of the matter asserted in the statement. Pa.R.E.

801(c).”   Commonwealth v. Williams, 2017 WL 6154484, at *20 (Pa.

Super. filed Dec. 8, 2017). “Communications that are not assertions are not

hearsay. These would include questions, greetings, expressions of gratitude,

exclamations, offers, instructions, warnings, etc.” Pa.R.E. 801, cmt.

      Here, the trial court determined that the testimony at issue was not

hearsay. (See Trial Ct. Op., at 16). Upon review, we agree.

      Appellant challenges the following exchange:

            Q. Okay. And, Mr. Kennell, going back to the afternoon of
      October 27th of 2015, did anything happen to you that afternoon
      that brings you to court today?

            A. My friend, Justin Huson, called me and asked me if—

           [Defense Counsel]: Your Honor, I object to conversations
      between him and this other individual being hearsay.

                                  *     *      *

            THE COURT: I am going to overrule the objection.

            You may answer the question.

                                      - 12 -
J-S81039-17



            [A.] Justin called me, asked me if I could pick him up after
      work to run out to the city and—you know, every time he called
      me, it was to go pick up—you know, get drugs, heroin in
      particular.

(N.T. Trial, 3/22/17, at 151-53) (emphases added); (see also Appellant’s

Brief, at 16-17).

      We conclude that the testimony in question was not an assertion

admitted to prove the truth of the matter asserted. See Pa.R.E. 801, cmt.

Mr. Kennell’s testimony about what Huson asked him could not have been

hearsay, by definition, because it was a question.        See id.   Further, Mr.

Kennell’s testimony referencing heroin was his own general description of prior

phone calls with Huson; the testimony did not contain any specific assertions

that Huson made.     Additionally, the testimony was introduced, not for the

truth of the matter asserted (i.e., that every time Huson called Kennell it was

to buy drugs), but to assist in creating a complete story of the events leading

up to Appellant’s arrest. (See N.T. Trial, 3/22/17, at 151) (Commonwealth

explaining that testimony was within scope of what was happening on the date

in question). Therefore, the trial court did not abuse its discretion in admitting

the testimony. See Feliciano, supra at 27. Appellant’s final issue does not

merit relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




                                     - 13 -
J-S81039-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/08/2018




                          - 14 -
