J-S09009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    RICHARD GAINES                             :
                                               :
                       Appellant               :   No. 1053 EDA 2019

          Appeal from the Judgment of Sentence Entered March 8, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0007807-2016


BEFORE:       SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 01, 2020

        Appellant, Richard Gaines, appeals from the March 8, 2019 judgment of

sentence entered in the Montgomery County Court of Common Pleas following

a jury trial. We affirm.

        The trial court summarized the procedural history and facts of the crime

as follows:

             [Appellant], represented by Attorney Marc Frumer, was
        found guilty of two counts of possession with intent to deliver,1
        two counts of possession of a controlled substance,2 and two
        counts of paraphernalia delivery,3 following a two-day jury trial on
        October 10, 2018[,] and October 11, 2018.

              1   35 P.S.780-113(a)(30)[.]
              2   35 P.S 780-113(a)(16)[.]
              3   35 P.S.780-113(a)(33)[.]


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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            Prior to trial, [Appellant] filed a motion in limine to preclude
     all testimony, statements, and evidence or information obtained
     from the confidential informant.4 The Commonwealth filed a
     response to [Appellant’s] motion, and included a prior bad acts
     motion within that response.5 Argument was held on December
     19, 2017[,] on both motions. By Order dated March 6, 2018, this
     [c]ourt denied [Appellant’s] blanket pre-trial motion[,] which
     sought to preclude all evidence obtained from the confidential
     informant. However, the [c]ourt ordered that [Appellant] be
     permitted to object and argue against the admission of specific
     evidence should the Commonwealth seek to admit it. Additionally,
     the [c]ourt denied the Commonwealth’s [Pa.R.E.] 404(b) Motion
     in its Order dated March 6, 2018.6 See Trial Court Order dated
     March 6, 2018.

           4  [Appellant’s] Motion in Limine Precluding all
           Testimony, Statements, and Derivative Evidence
           and/or Information Obtained from the Confidential
           Informant at Trial, dated December 5, 2017.

           5 Commonwealth’s Response dated December 12,
           2017.

           6 In May, 2016, [Appellant] filed a Motion to disclose
           the identity of the informant, which was later deemed
           Moot as the informant passed away shortly thereafter.

           A jury trial was held on October 10, 2018[,] and October 11,
     2018. The charges brought against [Appellant] resulted from two
     drug purchases arranged by the Cheltenham Police Department
     and conducted through a confidential informant, hereinafter “CI.”
     The first purchase occurred on April 27, 2016[,] and the second
     on May 16, 2016. (N.T., October 10, 2018, pp. 37, 54)[.]

           For the April 27, 2016 transaction, the CI made contact with
     a drug dealer known as Bee and arranged the transaction. (N.T.,
     October 10, 2018, p. 37). Just prior to the meeting with Bee, the
     CI was searched, so as to assure he/she was free from contraband
     and money, and was given one hundred and eighty dollars ($180)
     in prerecorded currency to use for the drug purchase. (N.T.,
     October 10, 2018, pp. 38, 47). Sergeant Michael Regan of the
     Cheltenham Township Police Department carefully monitored the
     CI during the drug transaction and observed the entire purchase.
     (N.T., October10, 2018, pp. 46-50).

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           The CI was observed getting into the passenger side of a
     green Mercury Mountaineer. The vehicle then drove through a
     parking lot for several minutes before the CI exited the vehicle.
     (N.T., October 10, 2018, p. 48). From his surveillance position,
     Sergeant Regan identified [Appellant] as the driver of the green
     Mercury Mountaineer.7 (N.T., October, 10, 2018, p. 48). Upon
     returning to the police, the CI turned over two (2) bundles of
     heroin and was re-searched in order to confirm that the CI did not
     have any additional drugs or money on him/her. (N.T., October
     10, 2018, p. 51).

           7 The green Mercury Mountaineer was found to be
           registered to [Appellant]. (N.T., October 10, 2018, p.
           54).

           The second transaction between the CI and [Appellant] took
     place on May 16, 2016. The CI contacted the same phone number
     that was called for the first transaction. (N.T., October 10, 2018,
     p. 54). Similar to the first transaction, the CI was searched by
     the offices [sic] so as to confirm that he was free of contraband
     and money. The CI was again given one hundred and eighty
     dollars ($180) in prerecorded currency. (N.T., October 10, 2018,
     p. 55). The CI walked to the same location as the last purchase
     and was again followed by police. (N.T., October 10, 2018, p. 55).
     Sergeant Regan, in addition to Officer O’Donnell, Officer Chifello,
     and Officer Diaz, had the CI under surveillance during the entire
     transaction. (N.T., October 10, 2018, p.56).

           For the second transaction, the CI again got into the
     vehicle[,] which drove a short distance in the parking lot[] and
     was dropped back off near the entrance. (N.T., October 10, 2018,
     p. 58). The entire transaction was once again observed by
     Sergeant Regan. (N.T., October 10, 2018, p. 58). The CI
     returned with two (2) bundles of heroin. (N.T., October 10, 2018,
     p. 59).

          At the conclusion of deliberation, the [j]ury found
     [Appellant] guilty on all six charges. [Appellant] was sentenced
     on March 8, 2019. Prior to sentencing [Appellant] made an oral
     motion for extraordinary relief, which was denied by the [c]ourt.8
     [Appellant] asserted that the Commonwealth failed to provide
     [Appellant] with information regarding the confidential informant,
     which he argued was discoverable Brady9 material. (N.T., March

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      8, 2019, p. 9).       The Commonwealth countered that such
      information did not exist, but if it did, it was protected with the
      informant’s identity, which was to remain confidential.

             8 [Appellant] initially filed a written motion, however,
             as such motions may only be made orally,
             [Pa.R.Crim.P. 704(B),] the [c]ourt disregarded
             [Appellant’s] written motion, but allowed [Appellant’s]
             attorney to make the oral motion prior to sentencing.

             9 Brady v. Maryland, 373 U.S. 83 (US Supreme Ct.
             1963).

            On April 5, 2019, the instant timely notice of direct appeal
      was filed with Superior Court of Pennsylvania. By Order dated
      April 9, 2019, the undersigned directed [Appellant] to file a
      statement of errors complained of on appeal, pursuant to
      Pennsylvania Rule of Appellate Procedure 1925(b).

Trial Court Opinion, 6/12/19, at 1–4.       Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      I.     Whether the trial court abused its discretion in denying
             [A]ppellant[’]s Motion for disclosure of the identity,
             statements, and discovery concerning the [CI] because the
             informant had died prior to trial?

      II.    Whether the Commonwealth withheld requested Brady
             material, and erred in denying [A]ppellant[’]s Motion for
             Extraordinary relief by failing to disclose the agreement
             made with the police and/or district attorney’s office for
             “working off” the charges?

      III.   Whether this Court should review the issues raised herein in
             this appeal, or grant remand for purposes of allowing newly
             appointed counsel on direct appeal to file [a] Post-Sentence
             Motion Nunc Pro Tunc as a result of trial counsel ineffective
             assistance?

Appellant’s Brief at 6.


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

his motion to disclose the identity of the CI. Appellant’s Brief at 21. “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 set

forth in Commonwealth v. Bing, 713 A.2d 56 (Pa. 1998).                        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.

      Appellant asserts that the CI’s identity should have been disclosed to

Appellant prior to trial because the CI was “the only eyewitness to the hand-

to-hand exchange.” Appellant’s Brief at 24. Appellant suggests that Sergeant


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Regan, observing from his vehicle at a distance “could not see and/or hear

what was occurring inside the vehicle.” Id. Thus, Appellant maintains that

“the jury had to rely upon circumstantial evidence.” Id.

       This issue is waived. First, Appellant substantiates no such denial order

by the trial court. Appellant’s Brief at 21–25. To the extent that the trial court

indicated at a December, 2017 hearing that based upon the law, the court

would have denied the motion, defense counsel stated, “Yes, I agree with

that.” N.T., 12/19/17, at 3. Second, the trial court explained, “At a hearing

before the [c]ourt in October 2017[,] it was brought to this [c]ourt’s attention

that the CI had passed away. At that time, it was agreed upon by the

parties that the Defense motion seeking to disclose the CI’s identity

was deemed moot.” Trial Court Opinion, 6/12/19, at 6 (emphasis added).

We note that the record certified to us on appeal does not contain notes of

testimony from an October, 2017 hearing.1         However, Appellant, by new

counsel on appeal, acknowledges defense counsel indeed concurred that the

issue of the CI’s identity was moot and suggests that trial counsel “should not

have agreed that the pre-trial Motion became moot upon the death of the

informant . . . .” Appellant’s Brief at 34. Thus, we agree with the trial court’s

determination that the issue is waived. The trial court stated:


____________________________________________


1 “It is an appellant’s duty to ensure that the certified record is complete for
purposes of review.” Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super.
2012).


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       Counsel is not permitted to raise the merits of an issue for the first
       time on appeal. The Pa[.] Rules of Appellate Procedure clearly
       state that issues not raised in the lower court cannot be raised for
       the first time on appeal. Pa.R.A.P. 302(a). Prior to this [c]ourt
       addressing the merits of the motion to disclose, [Appellant] and
       the Commonwealth, by agreement, determined that the motion
       was moot, thereby waiving [Appellant’s] right to now litigate the
       merits on appeal.

Trial Court Opinion, 6/12/19, at 6.            Accord Commonwealth v. Torres-

Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017) (issues not raised in lower

court are waived and cannot be raised for the first time on appeal).

       Appellant’s second issue asserts that the Commonwealth withheld

Brady material, and the trial court erred in denying his Motion for

Extraordinary Relief. Appellant’s Brief at 25. Appellant fails to analyze the

procedural posture of his request. This issue is waived.

       At sentencing, the trial court addressed Appellant’s written Motion for

Extraordinary Relief. N.T. (Sentencing), 3/8/19, at 3. The trial court informed

counsel that such motion must be made orally. See Pa.R.Crim.P. 704(B)(1)

(“Under extraordinary circumstances, when the interests of justice require,

the trial judge may, before sentencing, hear an oral motion in arrest of

judgment, for a judgment of acquittal, or for a new trial”) (emphasis added).2

____________________________________________


2   The comment to this rule provides that it:

       is intended to allow the trial judge the opportunity to address only
       those errors so manifest that immediate relief is essential. . . .
       [T]he basic purpose of the rule [is as follows:] when there has
       been an egregious error in the proceedings, the interests of justice



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See also Commonwealth v. Fisher, 764 A.2d 82 (Pa. Super. 2000) (Plain

terms of predecessor rule to Pa.R.Crim.P. 704, governing oral motions for

extraordinary relief, do not permit the filing of a written motion for such relief

prior to sentencing).       After the court called Appellant’s attention to his

noncompliance with the rule, defense counsel then made an oral motion

reiterating the arguments in his written motion. N.T. (Sentencing), 3/8/19,

at 3.     The trial court entertained argument by both Appellant and the

Commonwealth and denied the motion. Id. at 4–20.

        Appellant did not raise his Brady claim at the earliest opportunity. He

could have raised it pretrial, as soon as he learned that the prosecutor did not

intend to provide him with the requested information. He also could have

raised it at trial when he learned during Sergeant Regan’s testimony that the

CI was “working off” charges. N.T. (Jury Trial), 10/11/18, at 9–10. Most

importantly, Appellant did not raise the claim in a post-sentence motion.

Instead, he raised it only by way of the motion for extraordinary relief, which

did not preserve it for appellate review.        See Pa.R.Crim.P. 704(B)(3) (“A

motion for extraordinary relief shall have no effect on the preservation or




____________________________________________


        are best served by deciding that issue before sentence is imposed.
        Because the relief provided by this section is extraordinary,
        boilerplate motions for extraordinary relief should be summarily
        denied.

Pa.R.Crim.P. 704, cmt.

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waiver of issues for post-sentence consideration or appeal.”). The comment

to this section of the rule explains as follows:

      Paragraph (B)(3) is intended to make it clear that a motion for
      extraordinary relief is neither necessary nor sufficient to
      preserve an issue for appeal. The failure to make a motion for
      extraordinary relief, or the failure to raise a particular issue in such
      a motion, does not constitute a waiver of any issue. Conversely,
      the making of a motion for extraordinary relief does not, of itself,
      preserve any issue raised in the motion, nor does the judge’s
      denial of the motion preserve any issue.

Pa.R.Crim.P. 704(B)(3), cmt (emphasis added). For these reasons, the issue

is waived.

      Even if not waived, we would agree with the trial court that the issue

lacks merit. Under Brady:

      “a prosecutor has an obligation to disclose all exculpatory
      information material to the guilt or punishment of an accused,
      including evidence of an impeachment nature.” Commonwealth
      v. Spotz [610 Pa. 17], 18 A.3d 244, 275–76 (Pa. 2011) (citation
      omitted). To establish a Brady violation, [an] appellant must
      demonstrate: the evidence at issue was favorable to him, because
      it was either exculpatory or could have been used for
      impeachment; the prosecution either willfully or inadvertently
      suppressed the evidence; and prejudice ensued. Id., at 276
      (citation omitted). “The evidence at issue must have been
      ‘material evidence that deprived the defendant of a fair trial.’ ...
      ‘Favorable evidence is material ... if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different.’” Id.
      (citations omitted).

Commonwealth v. Champney, 65 A.3d 386, 397 (Pa. 2013).

      Speaking to the merits, the trial court stated:

      [Appellant], in his motion for extraordinary relief, alleged that it
      was clear from the testimony of Sergeant Regan that the
      Commonwealth was withholding information regarding the CI.

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      Sergeant Regan explained to the jury the process of how a CI
      operates and that in some cases, a CI may be “working off
      charges.” (N.T., October 10, 2018, p. 31). [Appellant] assumed
      this testimony to indicate that the CI in this case was “working
      off” charges for the police and that documentation regarding that
      would exist. However, it is clear from his testimony that when
      Sergeant Regan[] stated[,] “[G]enerally they are working off
      charges...” he was broadly explaining confidential informants to
      the jury and not describing this specific CI (N.T., October 10,
      2018, p. 31). Therefore, it is clear to this [c]ourt that [Appellant’s]
      claim of a Brady violation via the motion for extraordinary relief
      was without merit.

Trial Court Opinion, 6/12/19, at 7–8.

      The evidence that Appellant argues was suppressed was information

that the CI “worked off” charges. Appellant’s Brief at 27. He claims that such

evidence would have demonstrated the CI’s bias and motive to lie, thus

casting doubt on the Commonwealth’s case. Id. Notwithstanding the fact

that the CI did not testify, to the extent he would have been impeached, in

effect, he was impeached.       Appellant presented the allegedly impeaching

evidence to the jury when Sergeant Regan testified on cross-examination that

the CI was “working off” charges and had “something to gain” by helping

police.   N.T. (Jury Trial), 10/11/18, at 10.       Defense counsel used that

information—the very information Appellant now complains was withheld—to

subsequently aver during summation that the CI was a “polluted source” who

generally could not be trusted and otherwise cast doubt over the entire

investigation. Id. at 84–85. We agree with the Commonwealth that under

these circumstances, Appellant cannot show that the outcome of his trial

would have been different because he actually presented the sought-after

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information. Commonwealth’s Brief at 12. Thus, even if not waived, we would

find the issue lacks merit.

       Finally, Appellant suggests this Court should remand this case to permit

counsel to file a post-sentence motion nunc pro tunc “as a result of trial

counsel[’s] ineffective assistance.”     Appellant’s Brief at 29.    Appellant is

incorrect. Rather, any claims of ineffective assistance of counsel are deferred

to be raised in a subsequent petition pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.

       In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme

Court considered “the reviewability of claims of ineffective assistance (“IAC”)

of counsel on post-verdict motions and direct appeal.” Id. at 563. Following

a comprehensive review of the language codified in the PCRA and decisions

from    our   courts,   the   Holmes     Court   revisited   the    exception   to

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), as described in

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that absent

either good cause or exceptional circumstances and a waiver of PCRA review,

IAC claims must await collateral review.         See also Commonwealth v.

Barnett, 25 A.3d 371, 373 (Pa. Super. 2011) (en banc) (“[T]he Supreme

Court has limited the applicability of Bomar” such that most assertions of

ineffective assistance of counsel “are appropriately raised only on collateral

review.”); Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013)

(“[A]bsent either good cause or exceptional circumstances and a waiver of


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PCRA review, ineffective assistance of counsel claims must await collateral

review.”).

      We note that Holmes applies to ineffectiveness claims themselves, not

the underlying substantive claims, which herein, are trial court error and the

withholding of alleged Brady material. However, to the extent that Appellant

has even articulated proper ineffectiveness claims, there is no indication in the

record that good cause or extraordinary circumstances exist such that

Appellant’s claims warrant review on direct appeal or that Appellant expressly

waived his right to PCRA review. See also Barnett (holding that this Court

cannot review IAC claims on direct appeal absent a defendant’s waiver of PCRA

review). Consequently, we decline to address Appellant’s claims in the context

of ineffective assistance of counsel and/or remand to the trial court without

prejudice to his ability to raise the issues in a subsequent PCRA petition, if he

so chooses.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2020




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